From the Small Claims Courts blog of Leo Hura.
Agreement is a goal in almost any negotiation. Mediation is no exception. Agreement, yes or no, is a metric. When Agreement is not reached it’s common to hear “the mediation failed”. Human nature, and America’s penchant for a “winner”, may leave parties and judges wondering what role the mediator played or failed to play in a “failed mediation”. At worst, it may drive mediators to be so focused on Agreement as to become coercive, Agreement viewed as a “win at any cost”, which itself creates challenges to the mediation community.
If being a successful mediator at the small claims court level is not just about Agreement then what else is there? The parties experience with mediation is important. It’s gratifying to hear a simple “thank you for trying”. However without amplification it is hardly a metric. At the other extreme, small claims court mediation is usually too short to get what we at time hear in a longer mediation which failed, “it’s been a waste of time”. We don’t yet have a client feedback system, but we’re considering it.
Besides the parties, the other channel for feedback, are judges. They have needs and expectations. For example they have a need for “efficiency”. Their court calendar may include a large number of cases. With a mandate for mediation they have to preserve time for trial. They expect a mediator to stick to time limits. However, there is an interesting dilemma for interaction between judge and mediator, confidentiality. Since we’re going to focus ourselves on this issue at a meeting within our ACR group we’ll discuss judge with mediator interaction in a future blog.
As a result the only other external feedback I get is what I can glean from attendance at trial after a “failed mediation”. It is a bit awkward because of the paradigm shift, from negotiation to the presentation of the evidence, advocacy for a position, judge’s directiveness, analysis, and decision.
What do I listen for?
How do I apply what I learn? I apply it to an assessment whether the mediation process I am using, from my introduction through the end of the mediation, is still working, efficient, and did I ask the right question, apply the right technique? Is there something I need to add, subtract, or modify? Do I need to add to my repertoire of questions to ask? Is there a pattern in resolution of cases at trial which are worth exploring in negotiations taking place in mediation? Given the time constraints, I have to be very selective in adding any additional step to the process.
As for measuring success, any “process” I choose is going to be geared towards enabling the parties to negotiate and reach Agreement. It’s my duty to the court to be efficient. Within those parameters, the client’s need to know I “get” their complaint, their case, and get them to a point where they can make a decision. However, bottom line, it’s still their decision. If they do not reach “Agreement” and it becomes a pattern then “change” in my mediation process has to move from an option to a “must do”. Feedback from parties and judges is critical. Some limited measure of success comes from sensing “continuous improvement” from what I learn from trials. When and if, we do put a meaningful party feedback system in place, we can look at other metrics of success. As for the judges and their evaluation of a mediator, that’s a future blog discussion item.
Despite the 0 for 4 results in small claims court this week, maybe I can take solace from the 2 for 2, “Agreement Reached”, in 2 multi-hour mediations conducted this week? Maybe if I only had a longer time in small claims court mediations… Let’s not go there.
First published in the Wisconsin Law Journal, June, 2007, Alternative Dispute Resolution SectionThink back to those law school days of the Socratic Method. Or perhaps a more recent, similar memory...By Bob Weiss