I have mixed emotions. Why? Recently, I have conducted multiple mediations simultaneously in matters involving the same plaintiff’s counsel and defendant’s counsel. These are lemon law cases and so frequently the same plaintiff’s counsel will have multiple cases with the same defense counsel. The mediations are thus scheduled for a single day and only counsel are present. The attorneys beforehand agree on which cases to mediate, and we mediate 6-10 cases simultaneously in a matter of hours. The plaintiffs are available by telephone as is the manufacturer’s representative. We create a spread sheet on which we list the name of each plaintiff and then columns for first the plaintiff’s demand, then the defendant’s offer, then the second round of same, the third round of same and so on. Each time I speak with each attorney, I obtain demands/ offers on each case, then take them to opposing counsel where the response is given on each matter and so on back and forth until an amount is agreed upon or not. Often, since counsel are the only ones present and know each other, they may speak directly to each other about the issues- substantive and monetary. So far, all of the cases have settled using this “marathon” method of mediation.
Is this “mediation”? From my many hours of training, I have learned that the “process” is important. Indeed, the Model Standards of Conduct for Mediators talk about party self-determination, and the quality of the process, among other things. With respect to self-determination, the model rules define it as “…the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.” (Standard 1 A.) With respect to Quality of the Process (Standard VI), the Model Standards provide that that the mediation is to be conducted “… in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.” (Standard VI A.)
By conducting these mediations en masse, has each plaintiff’s case been routinized, become part of an assembly line and simply turned into a numbers game? Often in mediations, each party is allowed to tell her story, to be listened to, heard and acknowledged. This giving of dignity and respect to each party is fundamental to the process. It is the first time (and perhaps the only time) that many plaintiffs will be able to tell their story to a third party. While to the attorneys, it may be “just another case”, to the plaintiff it is HER story, and her ONLY experience with these issues. Unlike the others in a mediation, she is NOT a repeat player. She is the one who is affected by the events, and she is the only who at the end of the day, must live with the results of the mediation. The rest of us in the room get to go home, walk the dog to clear our minds of the day’s events and move on to other things.
Granted, during each round of the negotiations, each counsel is constantly on the telephone with her respective client updating her as to the events and seeking further settlement authority. But, is the quality of the process being compromised (sacrificed?) by the parties not actually being there, by not being able to sit across the table from each other and listen and hear to what the other is saying in an effort to understand the other’s perspective and thus the other’s needs and interests?
Is this marathon process simply a Band-Aid approach rather than one truly resolving the underlying conflict? Does the plaintiff walk away as satisfied as she would be had she been sitting in the conference room and given the opportunity to tell her story and be heard and acknowledged? I do not know.
The counter argument to the above is that these marathon mediations are an efficient and cost effective way to settle the cases. Each plaintiff IS on the telephone and, as the situation may reveal itself, I, as the mediator, do have the opportunity (and have indeed taken it) to speak directly to the plaintiff on the telephone to listen to her and acknowledge her. Indeed, in some of these, I have held a joint session in which defense counsel is also present to listen and discuss the issues with the plaintiff.
And again, both counsel and I work to insure that no plaintiff feels coerced or forced to settle. Some of these matters have spilled over to the next day to allow counsel to further discuss the matter with her client and to allow the client further time to think about it.
So… my emotions are mixed. While these marathon mediations are an efficient and cost effective way to resolve matters, are they doing so at the expense of the dignity of the parties and of the process? Are we forsaking the quality of the process for efficiency because in today’s world there is simply too much to do, and not enough time in which to do it given the 24/7 world in which we live? As the mediation process does truly belong to the parties (it IS, indeed their dispute!), should I as the mediator even be concerned about these things? After all, it IS their mediation, not mine!
…. Just something to think about.