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Mediate.com

Mediation as a Business

by Phyllis Pollack
April 2012

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

Most mediators I know are passionate about their work and about bringing peace to the world. We like to think of ourselves as “peacemakers” and that our goal is to assist others in resolving disputes.

Consequently, we may not always focus on the fact that mediation is a business or that, in fact, we are “peacemakers for hire.” Like others, we need to be paid so that we, too, can pay our rent or mortgage, put food on the table and provide for our kids (or, in my case- my dog, Argus.)

At times, this passion to be a peacemaker collides with the realities of earning a living. We get caught up in helping parties resolve a dispute and rather than stopping in the middle of it, and insist on getting paid before proceeding further, we finish our peacemaking, believing that the parties will act in good faith and pay for services rendered after the fact.

Unfortunately, our good faith does not always carry the day. Once in awhile, we, too, get “stiffed”, and we are left to ponder how could it have been prevented without subordinating our passion for peacemaking to the gods of money. The ready response by many of you is simply “ get paid in full” before proceeding, ie, before the mediation even begins! In short, get a deposit covering the entire proceeding. But, in some instances, this is not always feasible; some clients are simply unable to pay in full beforehand. So, what does one do?

A case in point. The Los Angeles County Superior Court has a program in which parties can select a mediator for a reduced rate for the first three hours of mediation; for each hour thereafter, the mediator can charge her market rate.

I received a mediation under this program. About ten days prior to the date set for mediation, the plaintiff’s attorney called me advising that she did not want to go forward with mediation unless the defendant would be offering at least a certain minimal sum as a sign of good faith. I suggested she discuss it directly with defendant’s attorney. At first she did but then she called me again, insisting that I get involved. Over the next week, I spent close to three hours on the telephone with both counsel mediating whether the mediation would even go forward and if so, under what circumstances.

On the day before the scheduled mediation, I sent them each an e-mail advising that we had expended 3 hours of time at the reduced rate and if we proceeded forward, it would be at my market rate.

In response, plaintiff’s counsel telephoned me, asking for my help in trying to settle the case that day. (I took this as an agreement to go forward, which, not surprising, plaintiff’s counsel later disputed!) At this point, I had not received any deposit from plaintiff’s counsel. Should I have said “no”, insisting on a deposit before proceeding further or should I have trusted her to pay me later? Being a “peacemaker” I did the latter.

During the rest of that day, I, in essence, conducted a telephone mediation. By the end of the day, the parties reached a settlement in general terms. I spent some time in the following days, helping the parties iron out the details.

The settlement amount agreed upon was far less than plaintiff believed she was entitled to but far more than defendant believed it should have paid.

Because of all the pre-mediation debate and negotiation, my invoice was for far more than the reduced rate under the court’s program. Evidently, plaintiff exploded upon receiving it and decided to blame me for her “bad settlement.” (I assume plaintiff’s counsel did not explain to plaintiff the amount of time she spent on the telephone with me debating whether to even mediate.) As a result, I received a check for less than 50% of what was due to me.

Do I walk away, learning a valuable lesson, that as much as I want to think otherwise, mediation is first and foremost a business and without payment upfront, I do not even attempt to make peace? Or, do I sue and let the court decide – in direct contradiction to my mantra “to make peace”? Or, do I negotiate and see how much more I can get the plaintiff to pay and then walk away from the remainder? I fear that none of these solutions is the “right” one. I do not know the answer.

It is oxymoronic that this all happened right around the end of the year holiday season. What happened to the holiday spirit and good will to all? I guess “business is business”, no matter how or when it occurs!

As much as I do not like this lesson, I will remember it and learn from this experience; as much as I want to help people resolve their disputes and “make peace”, I will keep my “business hat” on as I ponder the inexorable tension between “peacemaking” and paying the mortgage!

. . .Just something to think about!

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



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