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Mediate.com

Shameful Performance

by Paul Rajkowski
September 2016 Paul Rajkowski

Mediators have caved to attorneys asking for separate sessions in mediation. Proponents of separate sessions, or caucus style mediation are just not getting it. I call it shameful because it distorts the original intent of the process and causes more harm than good. 

In the reader’s mind there may be responses to return fire. But, wait, Thomas Paine once said that not being in the habit of thinking a thing wrong gives it the superficial appearance of being right. Let’s look at the purpose of mediation and its definition.

Tennessee Rule 31 states, Mediation is an informal process in which a neutral person conducts discussions among the disputing parties designed to enable them to reach a mutually acceptable agreement among themselves on all or part of the issues in dispute. 

The definition of the word “among” implies a joint session (the mediator and two parties). The Cambridge Dictionary explanation of the difference of among  and between states, “We use between to refer to two things which are clearly separated. We use among to talk about things which are not clearly separated because they are part of a group. If the definition says “between” than separate session may be implied. Keeping people in separate sessions reinforces that they are clearly separated. However, the objective of mediation is to bring the parties together in joint resolution of the conflict. How shameful is the use of the word “between.“

Why do attorneys ask for separate sessions in the first place?

  • They are used to it
  • They are afraid their client will blurt out a strategy for trial or make, or accept a bad offer
  • Parties “cannot be in the same room together”
  • Its easier to try out proposals without commitment
  • Its easier for the client to walk away from the opposing party (terminate)

What is lost in keeping the parties in separate sessions?

  • Loss of mediator neutrality
  • Loss of self-determination, replaced by informed consent
  • Loss of mediator’s mastery of facilitative skills
  • Agreement without resolution

LOSS OF NEUTRALITY

Neutrality means that the mediator should be scrupulous in not taking sides. The mediator will make no recommendations or decisions and will have no interest in the outcome. It is unavoidable to lose neutrality when the mediator is shuttling back and forth from room to room, person to person, translating one person’s demands and offers to the other side. Whether the mediator means it or not, they will be putting their own interpretation of what was said by the party whose message they are conveying. In fact, by the very act of delivering the message, they become an agent for that party. Since reputation of the mediator rests on being able to “get an agreement,” they may color the offer in a way that makes it more likely that the receiving party will agree to it. There is also the temptation to come up with a suggestion or argument in an effort to bolster acceptance of an offer and to reach can agreement.

LOSS OF SELF-DETERMINATION

The loss of neutrality necessarily takes away self-determination because the mediator is substituting their judgement for the parties’ by choosing what and how to convey offers and communication back and forth. Separate sessions allow the attorney to control what is being passed to the other side through the mediator.  It gives both attorneys and the mediator power at the expense of the parties. In fact, many times the conversation is just between the attorney and the mediator.

The parties are dealing with only a shadow of what is being played out in the room. The lack of transparency leads to paranoia, distrust, and doubt. In fact, one of the purposes of separate sessions is to keep secrets or withhold certain information as leverage. This causes parties to deal from weakness rather than strength.

When the mediator shuttles back and forth, any agreement winds up being a matter of informed consent rather than self-determination. Informed consent is defined as (the attorney) informing their client of the potential risks, benefits, and alternatives of a proposed course of action before providing consent. The parties are led to decisions, and may respond, “Yeah, that sounds okay.”

Self-determination is more than informed consent. It means coming to a voluntary, uncoerced decision in which each party makes a free and informed choice as to the outcome. The parties are free to explore all kinds of options, not just what is available in court. There will be a mutual options-generating process where each can build on the ideas of the other. By actually seeing and hearing each other, nuances of communication are not missed. Trust is built that leads to a lasting agreement that is not the “one size fits all” outcome available in court. In fact, one of the benefits of mediation is that the parties can reach a decision that the court could not give them. If the party is bound by the attorney and mediator to only what could happen in court, the party is giving up the exploration of alternative outcomes that would be of possibly greater benefit to either of them.

The loss of the parties’ ability to determine the agreement and resolution is shameful. The attorney is not trusting the mediator’s skills to provide the reassurance and confidence that the parties need to be in the same room. Shameful, as individuals do feel competent when deciding for themselves and taking responsibility for their own decisions.

LOSS OF MEDIATOR SKILLS

It is important that parties understand what mediation can offer by fully understanding both the mediation process and the mediator’s role, as well as their attorney’s role and their own part to play as the decision makers. The mediator’s performance includes many skills, among them: probing, reframing, shifting perspective, summarizing, fractionating, and most importantly, listening. Being trained in observing emotional play between the parties helps the mediator keep the parties focused and on a communication path. These skills come into play during the duration of the mediation by keeping the parties future focused and moving (option gathering) toward agreement. The mediator can move the parties away from the blame phase of “what you did to me,” help them focus on what they actually need, and move them toward the options phase of “what can we together to give each of us an optimal outcome.”

LOSS OF AGREEMENT AND RESOLUTION

Agreement can exist without resolution. If you have a gun to your head, you may “agree” to give up your wallet as you have been informedd of the situation. Synonyms for resolution are closure and settlement. Resolution will probably not be achieved in separate session because many attorneys or mediators (shame) don’t think resolution is important because they are focused on a concrete result; the agreement.  Unless there is party resolution the parties may be haunted by regrets and a sense of lost opportunity.

By example, a case of sexual harassment can have agreement and the individual leaves the company with a monetary solution and not much else. Alternatively, what the employee really wanted was recognition of her grievance, restitution of lost wages (bonuses) and an opportunity to continue working at the company with assurance that new guidelines would be in place. This resolution is less expensive for the company and gives greater worker satisfaction than a buy out. Both parties have new respect for each other and can work in the company environment, trusting each other in the future.

Resolution can happen naturally -  the parties in the same room, talking with one another, and realizing they have worked together resolving the problem. Don’t you think this presents a sense of joy over accomplishment and completion? It also fulfills the feeling of responsibility for making decisions. Without resolution that sense of lost opportunity will linger for quite a long time. “If only I could have looked her in the eye and said what I wanted to say.” Another shameful loss! As Michael Lang points out there may be a “lost opportunity” to completing resolution to the conflict. The point is, that opportunity only exists in the interaction between the parties. Whether they choose to look for resolution or mere agreement is their decision. What the mediator can do and will do is help the parties find that opportunity in joint session.  Its up to them to take it.

Now that you have read about the losses in a shameful mediation process that harms the parties and the mediator, you can find ways to restore joint session to the default position. Let’s remember the mediator has the skill to keep the parties moving toward agreement. By being positive the mediator, right from the introduction, is providing motivation to each party. The mediator’s comments are a confidence builder giving a sense to the parties of pending achievement.

Now seeing the value of joint session you can begin the habit of thinking of  joint session mediation as being right and not merely the appearance of being right.

Biography


Paul Rajkowski was born and raised in Chicago, IL. He was educated in Catholic schools — grade, high school, and university. Between years one and two at university, Paul entered military service (USAF) and then returned to university, earning honors. Paul’s entry into the world of commerce began in graphic arts and he eventually owned a printing company. After several years a friend and customer suggested an opportunity in Tennessee where he entered the furniture industry. He came to mediation as the result of a divorce. He became a board member of the Community Mediation Center, a voluntary mediation group. Since then changing the paradigm of the process has been Paul’s goal, hoping to create real value based on complete self-determination by the parties.



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