From Dan Simon’s Transformative Mediation Blog
I was looking forward to participating in this mediation. I was curious to see this process that seems so outdated and so much less meaningful than it could be. I feared that everything I’ve heard from litigation-mediators about how they view things would manifest itself in a tedious, frustrating process. The last time I had participated in one of these mediations was as a lawyer in 1995. It was as bad as I feared.
Our kindly mediator started by advising us that patience was the key. He told us his job was to try to settle the case; and he said that we’d probably know by the middle of the afternoon whether it would be possible to settle the case. I spoke up and said, “Mel,” (the other lawyers present called him “Your Honor”) “you should be aware that these guys are ready, willing and interested in talking directly to Owen – there’s no need from their perspective to keep them separate.” Mel replied, “well, it’s possible, at some point, that it will make sense for the principals to talk to each other, but for now remember what I said about patience.” Our lawyers were much more comfortable with the separate rooms, and whenever I suggested more direct conversation, they dismissed it and changed the subject.
So several hours passed with the mediator going back and forth between rooms. The mediator gained our trust by acknowledging some of the weaknesses of Owen’s case. We hoped he would be able to persuade Owen of those. Finally, at my urging, the mediator and our lawyers agreed that our lawyers would go talk directly to Owen’s lawyer. Our lawyers returned to the room saying, “that was actually very productive.” One bit of information that had finally been exchanged was that New Company was working with a far smaller number of Owen’s old customers than Owen thought. Our lawyers felt great progress when this information was exchanged after 4 hours. For me, that’s the sort of information that likely would have been exchanged within 15 minutes of a face-to-face conversation.
By hour seven or eight, settlement proposals were being exchanged. By hour nine, as Mel’s time ran out, a deal had been reached in principle. Our side was extremely frustrated and more resentful than ever toward Owen. They also feared that, even if this deal were signed, Owen would sue them again as they took more of his customers (which they hoped and intended to do). Now, a month later, it’s clear that any deal has fallen apart and, as Frank put it to me, “we’re going to war.”
What would have happened if the mediation had been conducted by someone competent in facilitating a face-to-face conflict conversation? There’s no way of knowing. But it seems impossible that the result could have been any worse than this one; and it seems likely that it could have been much better. In a recent similar case I mediated, in which the lawyers told me that mediation was unlikely to be helpful, and in which the parties initially refused to be in the same room together, 4 hours later, a buyout agreement was reached and all parties seemed genuinely happy about the outcome.
It’s a shame that the word mediation is used to mean both this sort of process and the sorts of conversations I support. In this process, the mediator and the lawyers controlled every moment. But conflict transformation only occurs when the parties have the opportunity and the responsibility to make the decisions about how they interact with each other.
Do you have any ideas about how we can help the legal community understand that they’re missing out on the promise of mediation?