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?
- Did I capture what Plaintiff is asking for and why?
- Did I capture what Defendant’s position really is?
- Did I properly assess not only their willingness to negotiate, also, what it would take to make it easier for them to negotiate?
- Did I succeed in getting them to the farthest extent in negotiation to which they were willing to go?
- Realizing even cases dealing with the same issues may be different, from the way a trial progresses and through the judges decision I consider:
- Did I ask the right questions?
- Are there questions I should have, wish I had asked? What would they be?
- Did I miss a key point which can make a difference?
- From the way parties present their case, are there signs they gained “take away” points from the mediation which benefits all concerned? Should this be a desirable outcome regardless whether or not the parties reach Agreement in mediation?
- Without solicitation, at the end of trial, does “his Honor” or the parties, in any way, act, acknowledge or comment?
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.