Sometimes, just sometimes, busy commercial mediators take the time to spread a little wisdom around the rest of us and one of the great things about belonging to the International Academy of Mediators is that you usually get to hear about it first.
So it was this week when Eleanor Barr, an accomplished mediator out of Los Angeles, asked for advice on how to structure a 13 party mediation.
It did not take long before a wise old owl, who had heard Eleanor's request floating on a winter wind, flew down and perched on a nearby branch.
Michael Landrum of Landrum Dobbins LLC in Plymouth, MN generously recalled the time he convened a 17-party case with 53 mediation participants that was scheduled for five consecutive days, but settled in three.
Michael's advice comes from a lifetime at the table and is pure gold. You won't find this in a text book and you probably won't understand how valuable it is unless you are actually out there doing these large, multi party cases with 30+ people in one room all going in different directions like cats on cocaine.
Michael has ten tips - here's his first five;
1. Convene a “Process Design Conference” among attorneys (and maybe clients) on a separate day in advance of the actual mediation session. I have found this approach has the advantages of (a) getting their buy-in to the process (and thus a greater commitment to settlement); (b) enabling you to see how each player behaves during only “process negotiations,” which is an indicator of how they will conduct themselves when the rubber meets the road and how to deal with them when the process hits potholes; and (c) functioning as a good forum for identifying “affinity groups” as referenced below.
2. Establish and post caucus “schedules” (first couple of rounds – then who’s caucusing with whom may change) Because the key lawyers were all from the Twin Cities metro area, many with offices within walking distance of the caucus site, this made it possible for them to return to their respective lairs and “do something productive” during the 2-3 hours that might pass before it was their turn in the barrel again. They were quite appreciative of this flexibility. I had some initial concern about breaking momentum and their failure to fulfill commitments to return at the appointed times, but since they were part of the process design, I think this built in a sense of responsibility to do what they said they were going to do.
3. As the process evolves, revise and post revised schedules. By the second day, the pace of negotiations picked up markedly, and everyone decided to accept my suggestion that they stick around because the caucuses were getting shorter and we didn’t want to delay the progress being made because responses were beginning to be needed sooner and sooner. I think my willingness to develop an initial phase that respected their needs help create their willingness to reciprocate when it was time to accelerate things.
4. Identify “affinity groups” of parties with enough overlapping interests to create the potential for productive joint caucus with all members of the group. Also, if you’ve correctly sensed the “affinities,” an amazing amount of progress can take place while the group members interact with each other during mediator’s caucuses with other parties – i.e., you come back into the room, and the group that, collectively, was willing to put in $X as their share now presents a contribution of $X+. Once this snowball starts rolling down the hill, the contributions tend to get getting larger and larger as you make the rounds in succeeding caucuses.
5. Use a flip chart to develop a “Contribution (or responsibility, or both) Matrix,” i.e. what per cent of the total pie does each party see for itself and the others. After making the rounds in individual caucuses (sometimes affinity group caucuses), convene plenary session to present the matrix and facilitate dialogue about the results.
Read Michael's 5 remaining tips for multiparty mediations in Part 2 of this post.