Lecture Faculty of Law

University of Kragujevac

The Mediation Process

Professor Robert A. Creo

Kragujevac, Serbia

9 March 2005

THE IMPORTANCE OF DISPUTE RESOLUTION PROCESSES

Winston Churchill, while Prime Minister of England, said:

It is better to jaw-jaw, than to war-war.

War does not work.

War especially does not work to solve problems within a state or community.

The world itself is now becoming a village. Electronic communication is shrinking the world and makes us all more interdependent. Globalization of economies and internationalization of corporations and investments brings us all into greater contact with each other. Technology, such as television, mobile phones, and the internet has unleashed forces never before seen in history of man.

Geography, space between nations and peoples, used to be key barriers to both cooperation and competition. Now the key barriers are economic equality and access, language and cultural differences. With more electronic and other contact, it is inevitable that there will be more trade and more potential sources of conflict and disputes.

Stable trade, both domestic and international, is dependent upon reliable dispute resolution systems. Within a nation, governments have created political and judicial means to resolve conflict, primarily relying upon adjudication and courts. The power of government enforces decrees, laws and awards. These decrees, which are positive public law, protect property and individual rights and obligations. This has been called the Rule of Law. It differs from the rule of men or the rule of power and violence. Failed states, such as those in Africa, like Somalia, lack the Rule of Law and any resemblance to independent courts. Legislatures make laws but courts interpret and apply laws. An independent judiciary is a key component of a stable society. Democracy, especially the liberal form of individual rights against government power, can only be secure in countries with a dedication to the Rule of Law as enforced by independent courts and judges. Courts must function in a transparent and fair manner. Corruption undermines respect for the law and weakens the bonds of society. Trade, and capitalism, can only prosper in a legal system where disputes can be resolved in a fair and independent manner.

The main forum for dispute resolution are courts. Yet, court trials are only one way disputes can be resolved. Parties can create private courts, sanctioned by the law, called arbitration. Disputes can be avoided via negotiation and consensus building. Conflict can be managed and reformed via negotiation. Lawyers can become problem-solvers by encouraging their clients to resort to mediation instead of filing claims in courts.

ROLE OF LAWYERS IN SOCIETY

Why should lawyers be asked to obtain mediation instead of pursuit of a law suit?

Lawyers are leaders in society. Lawyers maintain key leadership in

Political, Economic, Social, Community areas. Good governance, based on ethics, including court systems, is essential for sustained economic growth.

 Lawyers have social capital and the respect of community. Lawyers have communication and argumentation skills. Lawyers have a moral and ethical responsibility to society to seek cooperation, build communities, demonstrate empathy, advocate inclusiveness and diversity.

Lawyers are usually one of the first points of contact for disputing people. Justice can be either RETRIBUTIVE or RESTORATIVE. Retribution seeks punishment and revenge. Restoration seeks to return to some former state of contentment; it seeks to compensate people and to make them whole for a wrong or a loss.

Lawyers can play a lead role in mediation.

Gandi said, Be the change you want.

WHAT IS MEDIATION?

Mediation is a process which differs from what happens in courts.

Mediation is one of the processes of Alternative Dispute Resolution, called ADR in North America and most of the world.

The key word is ALTERNATIVE.

Mediation is a process both inside and outside of civil justice system. It is part of the legal system since it is supported by express law and regulated by courts and the Minister of Justice here in Serbia under the 2005 Mediation Law, Official Journal of Serbia, #18.

Mediation is assisted negotiation.

Mediators are negotiators.

Mediators negotiate not only the specific terms and conditions of a substantive obligation or dispute, but also the procedure and process of negotiation. Mediators are involved with all aspects of the parties communications.

Mediation, although an alternative process, complements and supplements courts and judges.

It is a process which adjunct to the courts yet outside of the law and judge in action.

Courts all over the world refer pending claims to mediation.

Many use an approach similar to the 2005 Mediation Act.

Courts create a list or roster of approved mediators. Parties can recommend a particular individual for addition to the list or appointment on a particular case.

WHY MEDIATION?

Mediation works.

It works to bring about a quicker and less expensive end to most cases.

It assists the courts in managing the case docket.

It allows parties to focus on resolving cases earlier in the life cycle of litigation.

It allows more creative options for outcomes.

It restores relationships between the parties.

It provides individual justice as defined by the parties.

It allows parties to tell their story in an informal manner.

Mediators add value.

Disputing parties do NOT go to a lawyer to purchase litigation & trials.

They seek lawyers for advice or to solve a specific problem or difficulty.

These problems usually involve a conflict or dispute with another person or entity.

The law is involved in private contract formation, commercial activity and interpersonal interactions, including those alleging harm such as give rise to torts.

These obligations are regulated by the law and courts are required to interpret and apply the law to specific facts and cases coming before it.

Mediators create and maintain lines of communication between the parties.

Mediators remove strategic and other barriers of communication.

Mediators can frame and filter statements and information.

Mediators can help deliver difficult messages.

Mediation is private.

Communications are confidential.

WHAT ARE THE GOALS OR OBJECTIVES OF MEDIATION?

Mediation is based upon a concept of self-determination of the parties within wide boundaries set out by existing law.

Mediation is said to include principles of RECOGNITION & EMPOWERMENT of the disputants, that is the lawyer’s clients, themselves.

It is said to consider making the clients first and the lawyers secondary.

In courts, the opposite occurs—lawyers do almost all of the communicating, either in writing or orally.

GOALS

Settle the conflict in a comprehensive manner.

Break old patterns of action and old habits.

Transform old relationships into new ones.

Further social policy. (Example, nonviolence, peer mediation in schools.

SERBIA Law recognizes negotiated settlement is same as any extra-judicial contract or obligation.

WHAT DOES MEDIATION LOOK LIKE?

Under the 2005 Law, Article 9, Implementation of Procedure, the parties may mutually agree on the specifics of the process. If they are unable to agree, the mediator selects suitable conditions to activate and implement mediation.

The role and function of lawyers in mediation differs from when they act in court. Lawyers argue the law in mediation but should allow their clients to do the talking about the facts and the damages claimed by the party.

Think of it as making a film, with the lawyers being behind the scenes as writers and directors, with the clients being on screen as the stars telling their story.

Lawyers guide and advice, clients decide.

Clients themselves are active participants. They are expected to communicate directly with opposing parties and lawyers, and the mediator.

The mediator is not a judge. Mediators do not conduct hearings, find facts or impose settlements.

This is what arbitrators do. Arbitration is another ADR process but it is not mediation.

Arbitrators are private judges.

Mediators are facilitators and diplomats.

Mediators ask questions of the participants.

They seek to find out not only what happened, but how it felt to them. How it changed them.

What is important to them that the law may not recognize as an obligation.

Each participant has motivations. These needs are often called interests.

Interests can be thought of in wide categories.

SECURITY PHYSICAL & ECONOMIC

COMMUNITY–SOCIETY 

LOVE

STATUS–DIGNITY–REPUTATION

Professor Abraham Maslow, in 1930s, called this the Hierarchy of Needs.

We call these interests.

Parties have both competing and common interests.

Negotiating, including mediation, reconciles these competitions over resources, property or people by making trade-offs between them.

Interests can be supported by law—these become rights.

Courts determine rights.

In mediation, parties may voluntarily adjust or give-up rights to form consensus or obtain a settlement. Courts are unable to force people to relinquish vested rights.

Mediation allows people to consider:

Best Alternative To a Negotiated Agreement (BATNA)

Mediators discuss the risks and costs of continuing the dispute in court.

One risk of court is the uncertainty of how a judge or appeals judges may rule.

Delay in reaching any outcome may be a risk since business or other opportunities may have passed by the time the court rules.

Certainty is important for commercial disputes.

Publicity about the dispute may create risks or costs for one or more of the parties.

Creating legal precedent for or against a party position may be a risk factor.

Restoring relationships may happen in mediation but not be available in court.

Court action may create a greater harm to present and future relationships between the parties.

Courts are better at sorting out the past than building consensus on the future. Courts find fault with past obligations.

Mediation permits participants an opportunity to tell their story to people who will listen, including a neutral mediator. This is called “venting” or “getting it off chest” or “having day in court” in North America. It is one of the functions and purposes of effective mediation.

This encourages a humanization rather than a demonization of adverse and opposing participants.

CONFIDENTIALITY

Provided for in Article 6, Confidentiality of 2005 New Act

Since mediation is a confidential process, participants, including lawyers, can say things that can not be said in court. These include:

Apology

Acknowledgment of Legitimacy of Conflicting Interests

Forgiveness

Reconciliation

Expansion of existing or past relationships or obligations.

Willingness to compromise.

Interest in giving up rights.

HOW DOES MEDIATION WORK?

Common model for commercial cases and some family disputes is

INTAKE (telephone or court referral)

INITIAL MEETING (all parties and their lawyers)

Schedule Date of Mediation Session

JOINT SESSION

MEDIATOR OPENING STATEMENT OR ORIENTATION

CLAIMANT OPENING STATEMENTS OR PRESENTATION

    Includes comments by clients

DEFENDANT OPENING STATEMENT OR RESPONSE

MEDIATOR MAY REPEAT OR SUMMARIZE KEY POSITIONS

            May write information on large board or chart

MEDIATOR OR PARTIES MAY ENGAGE IN DIALOGUE

PRIVATE CAUCUS

            series of private and confidential meetings

PARTIAL OR FULL JOINT SESSIONS

            Mediator may convene some of participants in smaller groups.

RISK ANALYSIS

Good, Bad & Ugly

Devil’s Advocate

Agent of Reality

Mediator challenges assumptions, predictions and positions

FUNNEL ANALOGY

Information----Identify Interests----Assessments----Consider Options-----Bargaining----Resolution/Impasse/Adjournment

Sometimes involves multiple sessions, especially in divorce, over many weeks.

WHAT DO EFFECTIVE MEDIATORS DO?

Mediators serve as honest brokers.

MEDIATORS

ENGAGE

            Active Listening as sides of each party and as individuals

FOCUS participants on problem; key interests; priorities and solutions

CREATE doubts, flexibility, compromise, options.

GOLDEN RULE dynamic: participant steps in other’s shoes.

EMPATHY

TRUST & CREDIBILITY

RAPPORT: Dialogue & Trialogue

Moves the parties closer together in a continuous or continual manner.

Creates and maintains a safe environment for decision-making.

Recognize that people make holistic decisions when faced with uncertainty. A multitude of factors are considered, including their identity and values.

Manages the expectations of the parties.

TRANSPARENCY

            Explains what is going on during the process and why.

The American writer of the early 20^th century, F. Scott Fitzgerald, said:

The test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time and retain the ability to function.

This is what the best mediators do in every case. They retain at least two inconsistent stories in their minds while legitimizing and respecting the positions of these tales. Mediators can carry a proposal from a party as the final position yet know that there is still a final, final, final position to be considered after discussing the final, final position!

WHO ARE THE MEDIATORS AND WHAT MAKES THEM QUALIFIED?

Mediator Styles

Passive to Active to Proactive

Facilitative to Evaluative to Directive

SKILLS

Human talent: oral communication skills

Artist

Substantive knowledge of law of area

Reputation

Patience

Calmness

Persistence 

It is common in North America for mediators to make proposals for final solution. Prohibited in Serbia.

CONCLUSION

Mediation is non-linear. It is not a mechanical or predictable process in any specific case. It unfolds to meet the needs of each case. Mediation is a complex adaptive system.

As the American Poet Walt Whitman wrote:

Do I contradict myself? Very well then I contradict myself.

(I am large. I contain multitudes.)

Being a mediator subjects oneself to many uncertainties and inconsistencies. Nevertheless, I have found being a mediator to be very satisfying and mentally enriching. I am invited into the gravitas of people’s everyday life. When successful, I know I have done something good.

I feel it in my heart.

            Let me close with one peace story. I had a case over ten years ago. A father was using his riding lawn mower while his wife was inside. His three-year-old son wandered out and was run over by his father who was mowing in reverse. His arm was cut-off. Both parents blamed each other but still sued the maker of the lawn mower for defective product on the theory that the blades should stop when the mower is in reverse. There was tension between the parents during the mediation session. It was highly emotional for everyone. A financial settlement was reached at the end of a long day. The next day I unexpectedly observed the parents at the airport while we were awaiting separate flights home. They were holding hands and smiling. I did not interrupt them nor let them know I saw them. On my plane home I was looking out the window when I started to cry. I guess it was a release of all the emotions from the mediation. The gentleman sitting next to me asked if I was okay. I responded, “I couldn’t be better.”