Paul M. Lurie, now a retired partner at Schiff Hardin LLP, in 2013 created the Guided Choice Interest Group and its website. It established what is now known as the Guided Mediation, which was originally called Guided Choice Mediation. Here’s his description of the current process.
Guided Mediation is a collection of best practices and tools in actual use that increase mediation efficiency, get earlier settlements, reduce legal and consultants’ fees, and minimize business disruption. It focuses on designing a mediation process best suited for disputes to increase the chances of a successful and efficient resolution. It is not a specific model such as “facilitative” or “evaluative” mediation. See Dean B. Thomson, Early Mediator Engagement: Lessons from Master Mediators, 15 Journal of the American College of Construction Lawyers 39 (2021).
The earlier settlement occurs, the more value it provides to the disputants because of decreased legal and experts’ fees, preservation of valued business relationships, and reduced business disruption. Traditional mediators brag about the number of cases they have helped settle but do not mention when in the dispute resolution timeline those settlements occurred.
Guided Mediation emphasizes training users (including litigators, in-house counsel, clients, and mediators) to understand the tools available to design an effective mediation process, overcome impasse, and allow the earliest possible settlement. The training needs of mediators differ from those of litigators and in-house counsel.
The training needs also vary between industries. For example, construction industry disputes often have insurance issues and tiers of multiple parties. All the parties’ participation may be necessary to reach settlement, but their involvement has to be thoughtfully managed as they may have different legal relationships.
Training includes understanding brain science and its mediation practice implications. See Gary T. Furlong, The Conflict Resolution Toolbox (John Wiley & Sons, 2020, 2nd ed.). Training of mediators also includes knowing how to ask the right questions.
Key tools to maximize the benefits of Guided Mediation are:
- Early hiring of mediators to overcome lawyer resistance, establish a relationship with the parties, and build process trust.
- Using mediators as impasse diagnosticians based on confidential discussions to design the best settlement process for each particular case. There are usually causes of impasse in addition to the amount of money in dispute.
- Using a multi-phase mediation process including a pre-mediation phase to satisfy parties’ information needs and to allow adequate time for parties to change their settlement positions.
- Suggesting processes to overcome pre-existing impasses and those arising during mediation.
- Discouraging parties from making offers and demands (or even creating positions in their own minds) during pre-mediation until they get better insight into reasons for impasse.
- Collaboratively using experts or third-party neutrals on a binding or non-binding basis such as limited arbitration or “hot tubbing” parties’ experts. Preparing for limited arbitration often itself overcomes impasse. The use of adjudicative processes as mediation tools is described in Tom Stipanovich and Veronique Fraser, The International Task Force on Mixed Mode Dispute Resolution: Exploring the Interplay between Mediation, Evaluation and Arbitration in Commercial Cases.
- Using separate mediation processes for certain parties within a larger mediation, e.g., insurers, governmental agencies, and subcontractors.
Guided Mediation users have found great benefit in having pre-mediation sessions done virtually using video conferencing, e.g., Zoom. These sessions allow prospective mediators to meet separately with parties and their lawyers to develop the trust needed for the early hiring of mediators and collaborative development of the best settlement process. Having such pre-mediation sessions virtually avoids the scheduling problems of in-person appearance of multiple parties and substantially reduces mediation time and expense. Guided Mediation also has tools to overcome “Zoom fatigue” by limiting isolation in breakout rooms. Paul M. Lurie and Robyn L. Miller, Using Zoom for Pre-Mediation Activities to Achieve Earlier Settlements, 22 Under Construction (Winter 2020) (published by the ABA Forum on Construction Law).
Guiding Mediators manage pre-mediation to avoid surprises once negotiations begin. After the pre-mediation activity, the settlement negotiation sessions can be in person or by video. Mediators sometimes suggest preparing settlement agreements even before settlements are finalized.
The Guided Mediation process differs from early dispute resolution methods involving a written process in pre-dispute contract clauses and procedural manuals. Contract clauses should not be too prescriptive so that parties can design the most appropriate mediation process for each unique dispute. Changing the legal culture to achieve early dispute using contract clauses and manuals is not likely to be effective while lawyers and law schools still view preparing for litigation or arbitration as necessary even for disputes likely to settle.
Guided Mediation has begun collecting reliable data showing that its processes are considered best practices. Too much mediation literature and discussion wrongly assume that “one size fits all.” For example, mediation tools are much different for employment and family situations. This is one reason why it is so difficult to collect data on best practices across different fields.
The Guided Mediation website has been accessed by more than 14,000 viewers and is extremely popular in the U.S. and around the world. Guided Mediation is recommended by formal groups in the International Mediation Institute which are promoting the improvements to the mediation process identified by the Global Pound Conferences. One of these IMI groups is a partnership of the International Mediation Institute, Pepperdine University Caruso School of Law, and the College of Commercial Arbitrators.