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You may want to resolve where the mediation sessions will be held, especially in a dispute where parties are located at great distance from each other. In a court-annexed mediation, the courthouse can be a convenient, neutral option. In a mediation in which multiple sessions are expected, the site could be alternated between offices of each attorney or party. 
In reading that advice now, I see it as superficial and oblivious to the psychological and emotional impact location has on parties in mediation.  Thoughtful consideration of the mediation environment enhances party self-determination, supports quality decision-making, and can enhance the appearance of the mediator’s neutrality. It could be the most important decision made by a mediator or a lawyer representing a party.
One of the best discussions of the mediation environment appears in Barbara Madonik’s I Hear What You Say, But What are You Telling Me? Strategic Use of Nonverbal Communication in Mediation (Jossey-Bass Pub. 2001).  Her thesis is simple. “Environments send messages. . . . Th[e] [mediation] environment includes the physical surroundings that affect people’s bodily comfort levels. It also involves some less tangible elements: the parties’ relative levels of power, their feelings of safety, and arrangements that convey respect.”
Madonik spends quite a bit of time talking about how the parties convey to each other their sources of power based on education, information, expertise, reputation, persuasiveness, negotiating skill, money or resource control, employment status, emotional intelligence, race, gender, age, religion, or ethnicity. Later, she recommends the use of a round table in mediation to help reduce the power-distance between parties and between the parties and the mediator. She says: “[I]t sends a strong nonverbal message of mediator neutrality and party equality.” Careful selection of the chairs around that table can also send important nonverbal messages. Madonik recommends comfortable adjustable chairs that allow people to easily reach the writing surface of the table, especially if they are more diminutive in stature.  Women, especially, may appreciate this flexibility in the seating arrangement. They may feel more vulnerable if positioned low in relation to the table or in relation to the other parties.
If people do not feel safe in the mediation process, they will not likely participate effectively. Madonik reminds us that feelings about safety and control begin before the mediation and end when the parties arrive safely at home after the session. Accordingly, she recommends that mediators:
I would add to this list other concerns about safety. One mediator tells the story about a mediation in which he asked all parties to leave any weapons they might be carrying with his secretary. Both lawyers stood up, removed their pistols, and deposited them with the secretary. Jeffrey Rubin, a Florida mediator and ethicist, tells the story of a shooting in a Boca Raton mediation involving a probate case. The brother, a firefighter, killed his sister and then tried to shoot everyone else in the room. Later, the brother committed suicide. 
People practicing in family mediation often must anticipate high emotions and even undisclosed histories of domestic violence. I recommend that mediators take the following precautions to ensure the safety of the parties and the mediator:
To make parties comfortable, the mediator should consider many aspects of the physical environment: sounds (both pleasant, like music, and irritating), lighting, temperature control, wall color, carpet texture, the smell of the room and outside areas, and the shape of the room. Madonik takes an interesting approach to this topic by analyzing these elements from the perspective of persons with different information absorption preferences: verbal (reading), visual (charts and images); aural (listening); and kinesthetic (movement). 
Coffee service invites people to mingle and engage in small talk and “sets up a strong kinesthetic, visual, and auditory welcome message for many parties.”  Parties with visual preferences will appreciate nice artwork on the walls of the main room and caucus rooms.  They will also prefer a neat, dust free, and organized environment. Interestingly, visually-oriented people need a clean space in front of them to literally visualize and analyze the information they receive in the mediation.
Persons with auditory preferences will be easily distracted by noises. Yet, they need to listen carefully to the mediator and the other parties. They will prefer rooms free from phone interruptions, noisy conversations in adjacent rooms, ticking clocks, buzzing fax machines, or outside traffic and construction noises. People with kinesthetic preferences will like soft carpeting, comfortable chairs, and cozy rooms still large enough to allow then to get up and move around.
Madonik also recommends that the mediator carefully consider the color of the walls in the main room and caucus rooms. Reds may elicit unease and aggression. Yellows may make parties feel physically warmer, but the color may also elicit feelings of diligence or envy. Blues and greens evoke feelings of safety and tranquility. But, these colors also may make parties feel physically cooler.
Windows allowing natural light will make a room feel more spacious, but the mediator should be able to control any glare and outside distractions with curtains or blinds. Lighting fixtures should work properly. People with auditory and visual preferences will be distracted by buzzing or blinking fixtures.
Madonik also recommends that the main room and caucus rooms have adjustable temperature controls. The mediator may set the temperature higher in the morning and lower it after lunch when parties may feel more lethargic.
I have already mentioned the subtle nonverbal messages conveyed by something as simple as coffee service. Several scholars have mentioned the importance of food in mediation to build rapport, to energize parties, and to show respect for their needs.  Most mediators will remember to bring flip charts, markers, calculators, and notepads for the parties. They will make available phones, fax machines, laptop computers, and printers. Madonik recommends that the mediator also make tissues available. “On-site tissues relieve [emotional] parties of embarrassment and tension. They communicate a clear nonverbal message that crying is an acceptable and normal event that happens during this stressful time.”
She also suggests that mediators make available helpful props. For instance, in a mediation involving a vehicle accident, the mediator may have toy cars and trucks available. “The miniature size diminishes fear, puts things in a new perspective for parties, and allows people with a kinesthetic preference to communicate effectively about the accident.”
At one training session I attended, two Texas mediators suggested that the mediator install Nerf basketball hoops and other toys in the caucus rooms. Parties waiting for the return of the mediator could work off some nervous energy, keep from getting too bored, and think through the issue last posed to them, especially if they had a kinesthetic preference.
Applying These Principles in a Specific Case
I broke my lower left leg in three places approximately a week before Christmas 2004. Some two years – and four surgical procedures -- later, I am now living with an ankle fusion that has left my left leg ¾ of an inch shorter than my right leg. I no longer wear high-heeled shoes or skirts. I do not yet know if the original orthopedist negligently treated my leg. I know that he severed and tied off the vein running on the inside of my leg and I also know that my later surgeons – the orthopedists to the Pittsburgh Pirates -- never suggested that his original surgical technique was skillful. I know that he did not order x-rays when I complained of pain in the ankle in the summer of 2005. I also know he abandoned my care when I continued to complain of pain in the ankle later that fall.
I now wonder whether I would have been a candidate for a total ankle replacement if the first orthopedist had responded to my calls and provided appropriate diagnosis of the deteriorating joint in the fall of 2005. As it turned out, x-rays taken in January and March 2006 showed that the joint deteriorated very rapidly during this time. By the second surgery, performed by the Pittsburgh orthopedist, I had lost all the cartilage in the joint and some bone.
The first orthopedist and I face significant structural barriers to a non-litigated settlement of this case.  The reporting requirements of the National Practitioner Data Bank (NPDB)  discourage physicians from settling malpractice claims except in very exceptional cases of liability or in contrived and narrow circumstances.  Congress established the NPDB in 1986 in response to what it perceived as a rise in medical malpractice and a decline in the quality of medical care nationwide. Among other data, the NPDB collects information concerning medical malpractice payments resulting from a written claim or adjustment. Malpractice litigation can affect a physician’s insurance coverage and rates. Health maintenance organizations and hospital medical staffs often use the information in the NPDB to make hiring decisions. They will shy away from a physician who has a record of any claims filed against him or her. Ultimately, it may be impossible for the physician to stay in practice. While patients do not have access to the data bank, the information can leak to the public in ways that could affect a physician’s ability to attract new patients.
The reporting obligations surprisingly shift more negotiating leverage to doctors who tend to demand that their insurance carriers take all cases through a jury verdict, except those where liability is very clear cut. In doing so, doctors seek to avoid a report to the NPDB. Doctors already have significant bargaining leverage given that the overall win rate for medical malpractice plaintiffs (27%) is about half that found among plaintiffs of all tort trials (52%).  Accordingly, injured patients must face the prospect of hiring an attorney who will do a very thorough cost-benefit analysis of the claim. The October 2006 issue of the ABA Journal featured an article on the effect of tort reform on medical malpractice cases in Texas. Texas plaintiffs lawyers anecdotally report that they are only taking med-mal cases in which liability is clear cut, the damages are easily proved (usually high economic loss damages), and the case can be worked up for $15,000 or less in costs, for an expected settlement of $150,000.  A symposium issue of the Journal of Dispute Resolution reported that one med-mal plaintiffs firm takes only five percent of claims brought to it.  The injured patient also faces the cost, time, and emotional stress of litigation that can extend over three or four years. 
In October 2006, I learned about a pre-litigation med-mal mediation program sponsored by Drexel University College of Medicine. The program is designed to avoid any written demands that would trigger a NPDB report.  It uses a co-mediation model and seeks to help doctors take responsibility for medical errors, share information, preserve the doctor-patient relationship, fix the problem without risk, obtain “closure,” stay out of court, avoid costs, maintain control, and reach a confidential settlement.
Faced with these facts, I have fallen asleep many nights thinking about the context for the eventual negotiation – whether facilitated or not – that I expect to have with the first orthopedist. The environment needs to build trust and to encourage the exchange of information between the parties. I am primarily concerned – as are most injured patients -- with learning what happened, ensuring that the doctor does not make the same mistake with some future patient, and recovering money that makes me as whole as possible.  I am not looking for a windfall and I want to ensure that local doctors in my rural community agree to treat me in the future.
Giving my Students an Opportunity to Analyze a Potential Dispute
For the past semester, my eighty Dispute Resolution students have analyzed the potential claim I may have against my first orthopedist. I have asked them to pretend to be my lawyer. In the first exam of the semester, they analyzed the potential sources of impasse to a negotiated settlement of the claim, whether I am the sort of person who is likely to bring a claim, whether I have a strong prima facie case under Virginia law, and what processes, other than litigation, might serve both parties better.
In the second exam of the semester, students (working in groups of three or four students) answered the following exam question:
As attorney for Young: (1) Where would you suggest the parties hold the [mediation]? What factors would you consider in making that choice? What environment might facilitate negotiations? What amenities would you make available -- services, information, food & beverages, etc.?
* * *
(6) You now know that slightly elevating the emotions of a negotiating party will increase the likelihood of a favorable outcome for the party as well as for his or her negotiating partner. In other words, the individual and joint gains increase. How would you use this information in this specific context to facilitate the negotiation process?
The Professor’s Sample Answers
After I grade each exam, I post on the class website a summary of the better answers. As background, the exam facts indicated that the first orthopedist had an unspecified ethnic background. The orthopedist had now taken a new job in Charlottesville, Virginia, which is about a seven-hour drive from Grundy where the law school is located.
So here is how the students analyzed the situation.
The more successful answers recommended a location about half way between Grundy and Charlottesville. The groups scoring the most points for the first part of the question suggested meeting at a scenic neutral location, like a resort in Roanoke or the Mountain Lake Resort in Blacksburg.  Several groups supported this recommendation by citing to a similar recommendation in Getting to Yes. 
Other successful answers placed the mediation in hotel conference rooms in Roanoke, Blacksburg, or Charlottesville, at parks, a community center, and a day spa. Students suggesting places with less privacy, less confidentiality, and more distractions, like a coffee house, restaurant, schools, libraries, a business office, the attorneys’ offices, or the doctor’s office, scored fewer points. Students who thought about my handicap access issues scored higher points. Students that mentioned a “neutral location” without making a specific recommendation scored fewer points.
Students who recognized the importance of allowing the doctor to exercise great control over the selection of the location scored more points. He might feel more comfortable if he were on his “home turf” or controlled the decision. Higher scoring answers also needed to recognize that I, having the greater negotiation experience and better theory background, would want to make gentle suggestions that would shape the orthopedist’s choices to ensure a good environment for the negotiation. I might also agree to pay for the orthopedist and his lawyer’s accommodation at a resort or nice hotel to get more buy-in to the chosen location, more buy-in to the process, and as an act of rapport building (maybe I’m not a greedy lawyer/victim, after all).
Better answers considered the distance each party would have to drive (and whether I might need a driver), my teaching schedule, the orthopedist’s professional schedule (especially with a new job), the noise levels associated with any choice, the comfort of the surroundings, and whether the location would elevate emotions by reducing stress and engendering feelings of relaxation and even pleasure. Good answers also considered the comfort of the room, the comfort of the furniture, table shape and size, the affect a lake view might have on the parties, and even a room with a working fireplace.
Several students mentioned the use of scented candles to elevate emotions. I cautioned them that this tactic could be a little tricky. A mediator does not want to seem too manipulative in creating the negotiation environment. Some people might actually have allergic or asthma reactions to some scented candles. It might work if the candles otherwise fit in the context of the negotiation location. In any event, the mediator would want to make sure the room smelled fresh. Some students also considered the affect indoor plants might have on the mood of the parties to the negotiation. Because I am a gardener, plants might have an especially calming affect on me. Several students recommended a portable fountain. Again, tricky. It might seem too contrived. But if the resort or hotel had a nice water feature, the mediator might make sure the parties had pre-negotiation drinks or dinner near the feature.
One group of students scored no points for this part of the question. They suggested the parties negotiate in a small windowless conference room with florescent lighting and neutral colored paint. The group failed to say where this sad room would be located geographically. While the group suggested the use of a round table (a plus), the students also would have had the parties sit in uncomfortable wooden chairs. That choice would have been especially uncomfortable for me, given my injury. These students also failed to consider whether I would even agree to this negotiation environment because of the many negative nonverbal messages – emotional and psychological -- it would send to the orthopedist that could undermine the problem-solving approach I wanted. It could also undermine the trust I needed to develop to allow information exchange and a possible settlement of the claim. In my sample answer, I fired these attorneys.
Amenities & Food:
Students suggested the following amenities: phone; internet access (to find and download relevant articles on the medical issues; allow legal research on Westlaw); list of local sights and activities; fresh flowers (would appeal to me as a gardener); quiet background music; a separate room for private meetings between client/counsel or for caucuses; comfortable temperature control; office supplies; white boards; flip charts; and magazines (especially ones that would elevate emotions).
Several students also considered the amenities the parties might want during periods not scheduled for negotiations: massage therapy, golf, exercise rooms, TV, tours of the area, shopping, off-site dining, and activities for kids if the orthopedist or the lawyers brought their families.
Students suggested that the mediator offer menu service or pre-ordered lunch with sandwiches, finger foods, fruit (especially attractive to me, the daughter of a dentist), cheeses, a vege tray, juices, bottled water, candies, and mints. Several students, now aware of the research showing that chocolate elevates emotions, suggested that it be available, especially if it were gourmet, including hot chocolate drinks. Recommended beverages included coffee, tea and perhaps even light alcoholic beverages, if contextually appropriate (i.e. rapport-building sessions; negotiations or information exchanges occurring over Sunday brunch or over dinner). One group recommended that the food remain light so the parties would not get lethargic.
Some students recommended donuts (without explanation), although I doubt I would be happy with this choice given my concerns about the weight I’ve put on with this injury. But the mediator might check ahead to see what each party considers his/her comfort foods. In that context, donuts might be one choice offered.
A few students were smart to consider any dietary needs the orthopedist might have because of his ethnic background.
Four students, guess who, recommended that the parties be prohibited from bringing outside snacks or beverages into the meeting room, although the members of this group did mention a scheduled lunch break (no specifics). Beverages would be limited to a shared pitcher of water poured into 8 oz. foam cups. They did recommend some Hershey Miniatures. And they would allow the parties to take “quick” bathroom breaks. Thank god for that!
The most successful answer to this part of the question quoted heavily from the Shapiro article.  Groups recognizing that the mediator would want to keep emotions positive and constructive earned more points. Several groups again recognized how the location of the negotiations could affect the parties’ emotions. One group mentioned how my offer to pay for some aspect of the meeting (the mediator’s fee, the hotel expense, dinner, etc.) could positively affect the orthopedist’s emotions. If students had not mentioned chocolate as an amenity, it was time to do it here. One group also considered the principles of Feng Shui in affecting emotions. This suggestion was not crazy. Some scholars have written about the Viet Nam war negotiations in which the Asian participants made a very big deal about the placement, size, and shape of the negotiating table. They had concerns about Feng Shui principles of balance and harmony. The U.S. negotiators unwisely dismissed these concerns. If the orthopedist is Asian or if he or I otherwise believed in principles of Feng Shui, this suggestion could make a lot of sense.
In short, most of my students showed great creativity and emotional intelligence in picking a location for the mediation. The lesson I take from their work is that lawyers representing parties in mediation should consider the factors outlined above. While the mediator’s conference room may offer an easy and inexpensive location for the mediation, it may not always provide the best negotiating environment. Even in less desirable environments, control what you can to elevate party emotions, build trust, and engender a problem-solving atmosphere.
1 HAROLD I. ABRAMSON, MEDIATION REPRESENTATION: ADVOCATING IN A PROBLEM-SOLVING PROCESS (NITA 2004).
2 I have mediated in the tiny attorney-client consultation rooms of several local courthouses. The rooms typically have rectangular tables with uncomfortable wooden chairs. Often the locks on the doors do not work and so it is impossible to ensure confidentiality. In one courtroom, several people walked from an adjacent room through the mediation room on their way back into the courtroom. In one courthouse, inmates had laid a new floor in the one decently-sized conference room the court had available for mediations. They had installed stone tiles that caused sounds in the room to reverberate. The lighting in these rooms is almost always florescent. And the rooms do not have any windows or access to natural lighting. So, I don’t think much of that recommendation. At the same time, mediators must make do with the resources available.
3 An excerpt of this discussion appears at http://www.mediate.com//articles/madonik.cfm. I am not providing pin-point citations to her materials.
4 This recommendation reminds me of a running joke we had in my former law firm. One of my partners, a big guy with a muscular build, supposedly “wound down” the chairs in our conference room every time he had a deposition or negotiation there. He then sat in a chair that was “wound up” to place him taller than the other parties. He, of course, denied the behavior. But it seemed that at every partners’ meeting held in that room most of us had our chins resting on the table top when we sat in the chairs. While this “hard-bargaining” tactic may have served his purposes as an advocate, it could prove disastrous in a mediation environment.
5 He tells this story in the context of asking whether a mediator could be held liable for not providing parties a safe environment.
6 For more on this topic, see M.H. Sam Jacobson, A Primer on Learning Styles: Reaching Every Student, 25 SEATTLE U. L. REV. 139 (2001).
7 At an advanced mediation training class I attended, Lela Love asked the participants to share a “master move.” One woman mediator mentioned that she bakes chocolate chip cookies right before parties are expected to arrive at her office. The air is filled with the scent of this childhood treat.
8 For articles discussing the role of artwork or office décor in building rapport with clients, see Jill S. Chanen, Hispanic-Owned Firm Wants Office’s Look to Reflect its Success – and its Client Base, 91-JUN A.B..J. 54 (June 2005); Jill S. Chanen, Upholstered Chairs and Framed Art Add Welcoming Touches to a Sterile Office, 92-JUN A.B.A.J. 60 (June 2006).
9 Sharon Press, Director of the Florida Dispute Resolution Center, tells the story of a woman who filed a complaint against a Florida mediator for failing to provide a meal even though the woman suffered from low-blood sugar that interfered with her ability to think clearly. After an investigation, the grievance committee learned that the mediator had provided a meal. It was just not a very good meal in the opinion of the complaining party. See also Carol B. Liebman, Mediation as Parallel Seminars: Lessons from the Student Takeover of Columbia University’s Hamilton Hall, 16 NEG. J. 157 (April 2000)(discussing the importance of food in a student-administration dispute).
10 CHRISTOPHER MOORE, THE MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT 60-61 (2d ed. 1996)(describing the circle of conflict, causes of conflict, and interventions addressing specific causes of conflict, including structural causes of conflict). See also Paula M. Young, Structural Causes of Conflict: Something Else May Need to Change, ST. LOUIS LAWYER 14A (Feb. 6, 2002).
12 Physicians and their lawyers seemed to have worked out several ways of avoiding the reporting obligation:
1. First, according to a 1993 decision of a federal court, a physician does not need to report payments made out of his own pocket. However, if the payments are made by his professional corporation, he must report them.
2. Second, apparently if a plaintiff makes only an oral, rather than written, demand for damages and the physician or hospital pays the claim, they need not report it.
3. Third, the NPDB Guidebook states that “payments made as a result of a suit or claim solely against an entity (for example a hospital or group practice) that does not identify an individual practitioner is not reportable under the NPDB’s current regulations.” Attorneys have worked out arrangements in which the name of a health care organization (hospital or group practice) is substituted for the name of the practitioner who would otherwise have to make a report. This commonly occurs when the organization provides the insurance coverage for the practitioner. http://www.npdb-hipdb.hrsa.gov/npdbguidebook.html.
13 Bureau of Justice Statistics, Civil Data Brief: Medical Malpractice Trials and Verdicts in Large Counties, 2001, http://www.ojp.usdoj.gov/bjs/pub/pdf/mmtvlc01.pdf (last updated Jul. 2004).
14 Terry Carter, Tort Reform Texas Style: New Laws and Med-Mal Damage Caps Devastate Plaintiffs and Defense Firms Alike, ABA J. 30 (Oct. 2006).
15 Stephen D. Easton, Damages: The Litigation Environment, 2004 J. DISP. RESOL. 57, 65.
16 The NPBD Annual Report shows that the average delay nationally between the date of the incident resulting in the alleged injury and the date of payment (payout delay) is 4.6 years. For Virginia, the NPDB reports the following data:
- In 2004, healthcare providers filed 186 payment reports involving physicians. This number would indicate the number of physicians who had to pay a medical malpractice claim of some sort in that year. - - Virginia has approximately 14,000 licensed physicians in active practice. - - The 2004 mean payment was $283,567. - - The 2004 median payment was $200,000. - - In 2004, the average payout delay was 3.93 years. http://www.npdb-hipdb.hrsa.gov/npdbguidebook.html.
17 If you want a copy of the program materials, send me an e-mail.
18 Edward A. Dauer, Why People Sue in ADR Law and Practice (2000). I have spent about $15,000 this past year to cover uninsured expenses, including travel expenses, deductibles, co-pays, private nursing, and medical equipment.
19 See, e.g., Daniel L. Shapiro, Emotions in Negotiation: Peril or Promise?, 87 MARQ. L. REV. 737, 87 MARQLR 737 (2004).
20 The film location for Dirty Dancing (Vestron Pictures 1987).
21 ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN 61 (2d ed. 1991)(“What does it take for you and others to relax? It may be talking over a drink, or meeting at a vacation lodge in some picturesque spot, or simply taking off your tie and jacket . . . .”).
22 So much for supporting party self-determination about the mediation process itself.
23 Shapiro, supra note 18. Many mediators know this at an intuitive level. Their conference room tables often feature a bowl full of chocolate candy.
Paula M. Young is an associate professor at the Appalachian School of Law located in Virginia teaching negotiation, certified civil mediation, arbitration, and dispute resolution system design. She received in 2003 a LL.M. in Dispute Resolution from the top ranked program in the U.S. She has over 1400 hours of alternative dispute resolution training. Missouri and Virginia have recognized her as a mediator qualified to handle court-referred cases.
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