When approaching a mediation session, the experienced mediator pretty much knows the routine issues involved in the type of dispute confronting the parties. In employment and labor relations, factored in are performance expectations, disciplinary actions, collective bargaining agreements, and, throwing in EEO discriminatory allegations, whether or not the aforementioned are administered fairly, irrespective of protected classes involved. Domestic matters may present the disposition of property real and personal, children and the history, nature and status of familial relationships. Construction mediation may entail disputes concerning lost productivity, change orders, cost overruns and scheduling. Organized religion, long cloaked under the guise of spiritual harmony, is now accepted nevertheless as a mortal institution with typical internal disputes ripe for solving via mediation. Parties opting for mediation of personal injury claims seek recovery of losses and defense of liabilities resulting from bodily or physical property damages.
The securing of information to support either party’s position on the matter in dispute reaches a plateau upon litigation, and is substantiated through discovery, the formal procedures used by parties to a lawsuit to obtain information before a trial. Discovery helps a party find out what the opposing side’s arsenal consists of. Some of the common tools available to secure information in preparation for court are depositions, interrogatories, requests for production of documents, requests for inspection, subpoenas and subpoena duces tecums.
Information obtained though discovery adds flesh to the skeletal structure of a claim or defense. The more information available, the more a legal representative can use to convince a court of law to favor one party over the opposing party. A closer examination away from the court setting and into the mediation scenario shows what shape and level of import this same information takes at mediation.
Looking Beyond What’s Before the Parties
Discovery is an important concept for a mediator to consider when assessing the probability that the parties will settle their dispute. It helps the mediator to make an educated guess as to what grounds the parties may base an agreement. Discovery, normally a pre litigation exercise, can also be applied conjecturally by the mediator when the dispute is in its early stages, or when there is an appreciable void of information favoring one side or the other.
There are many issues impacting discovery. First, the mediator must determine the issues involved in the case. There are issues that are factual, such as dates of employment, position held, tenure, salary, age of children, probative documents, production schedules, budgeted expenditures, actual costs, inclement weather, equipment condition, depreciation, insurance coverage limits, medical prognoses, impairment ratings, clergy opinion, church bureaucratic authority, religious doctrine, and the like. And of course there are witnesses. Generally, it does not take very long to identify and secure the aforementioned information. These are certainly matters where there is no doubt as to the existence of relevant information, and all that need be determined is the extent of its role in the dispute. Normally, a party prevails in the dispute according to the veracity of discoverable information. Either it is compelling or it is not. What expands the discovery process and generates a great deal of time and expense, the reduction of which is mediation’s primary benefit, are other exercises such as deposing witnesses and painstakingly reviewing documents for applicability and admissibility. The results of these efforts can lead to even more “discoverable” issues, which translates into more time and more expense.
During the initial stages of mediation, the mediator is exposed to a great deal of summary information obligating the mediator to thoroughly probe and determine, based on his or her subject matter expertise (as opposed to legal position taken), where and when either party may present a strong rationale as discerned from the information in hand at the time of mediation. The mediator should be able to determine what is the probable scope and extent of information yet needed to be considered by either party to have a reasonable chance of prevailing in court. It is important for the mediator to have an ironclad grip on the information at hand and consequently ponder the horizon of information waiting to be considered by the parties to the dispute.
Evaluating Party Motivations: The Two “R’s”
The mediator should take into consideration the two R’s of the disputing parties, resources and resolve, i.e., parties’ seeming ability to afford litigation from a socioeconomic perspective, and to what extreme in the judicial process each may persevere. Another factor bearing upon resolve may be whether legal representation is based on contingency or retainer. The Mediator should evaluate the capacity of each party to negotiate; taking into account his or her demonstration of either intellectually or emotionally dominated reasoning when stating their position in the dispute, and thus be able to evaluate the probable length of party contentiousness.
In keeping with the principle of impartiality in mediation, seeking to learn more about the resolve and resources of parties in a truncated forum does not entail the mediator’s breaching of confidences, snooping into party backgrounds or overt conveyance of an opinion as to the merits of either party’s claim. This behavior is out of bounds for the mediator. However, it does intend to describe intangibles about the parties and their positions, albeit presumptive, a mediator must privately assess in order to manage the session and engineer a settlement. This is a difficult tool to master because the circumstances and group dynamics of each case are unique and present a challenge to the mediator’s psyche at each confrontation. With time and experience, mediators grow to learn that there are ways to predict outcomes to a greater degree, and as a result they can more efficiently focus their conciliatory energies.
There are many clues for the astute and observant mediator to look for in discovering party motivations and capabilities, which, when weighed appropriately, give the mediator a good barometer as to what the case may settle for, when and how. The objective of the mediator is to bring closure by getting the parties to agree to settle their dispute at the mediation. The noble intent of the dissenting parties who have agreed to mediation as a means of resolving their dispute is to accommodate this objective. The mediator’s omnipresent nemesis is each party’s option to leave the mediation without agreement (impasse) and pursue its BATNA. Both party’s ultimate BATNA is probably litigation. This is particularly true where the claimant believes that he or she is severely harmed and intends to seek significant damages, or where the Respondent believes that it is being blackmailed and saddled with the cost of defending a frivolous claim.
The party’s goal in any case is to determine to what extent it desires to challenge the matter before them. One of the threshold considerations is the party’s calculated chance of getting to court and before a jury. This threshold to litigation, called summary judgment, considers all matters discovered which the party asking not to go to trial feels legally compelled to support their position and the case decision is a matter of law without trial. The converse is true of the opposing party in that it argues that the information in hand is not compelling, and that there are material issues of fact to be considered by a jury. A corralling question posed by the mediator in caucus, particularly if impasse appears eminent, is what the party expects to happen at summary judgment. This question is usually directed towards the claimant’s party, since this party is the one who seeks judicial relief and the respondent is inclined to stop the attack before trial. The answer to this question alone gives the mediator a wealth of insight. If a party strongly feels that it can get past summary judgment based on its prediction of evidence revealed during discovery, but reality is that resources and resolve are limited, then it will likely set its sights at mediation on settlement terms and conditions that would approximate the time, effort and expense necessary to achieve that level, notwithstanding other matters of merit. If the party feels assured that it will survive summary judgment and get the case before a jury, then demand for settlement at mediation may be considerably higher; evidence of the two R’s operating in high gear. In these cases, the mediator is really challenged to avoid impasse, and must resort to fundamentals like reminders of the ultimate perspective of faultlessness regarding parties’ intent on settling at mediation, and commitment to negotiate in good faith.
The mediator with a trained eye should be able to quickly determine at the mediation table how serious a demand is from the claimant, just how far a Respondent will go in counteroffers before retrenching its position, and all the while remaining focused upon and speculative about the discovery process. Each piece of discoverable information influences negatively or positively the demand of the claimant and the resolve of both parties.
Considering the Future Now
At the onset of mediation, the experienced mediator is in an ideal position to evaluate the body of information already known by either party or sense a discover-as-you-go tactic displayed by the parties during the mediation. The latter is manifested by a party’s avoidance of centering on real interests and rejecting offers representing terms that may be far better for the party than a court ordered award. The latter is an abuse of mediation procedure since the parties should expect, by the nature of negotiations inherent at mediation, expeditious settlement with fewer proceeds and expenses versus future court ordered (and appealable) verdicts with higher proceeds and expenses. The good news is that during mediation, discovery is considered static. Both parties are weighing only the information in hand upon arrival at the mediation session. Both parties, particularly if represented by counsel, have a good idea of the unknowns to be gathered at any stage and how that information may influence the outcome of the mediation, or litigation, as the case may be. If they do not, the mediator who is learned in his or her area of expertise should be able to facilitate negotiations by making both parties aware of the pitfalls of continuing the dispute in a litigious setting, and the field of potential discoverables. The mediator should be able to assist parties in considering and evaluating what may be revealed in discovery, and therefore assist the unprepared parties to form a more realistic assessment of the strengths and weaknesses of the case. This may entail a good bit of “shuttle diplomacy” between the parties to clarify the possible routes of the dispute after a failed mediation. The mediator who empowers a party to understand possible issues and discovery that may yet arise, may still achieve the goal of settlement by planting seeds of doubt that may sprout at a later time and achieve the desired result, litigation avoidance.
It is important that the mediator listen closely and carefully to the origins of the complaint, not just its allegations, taking into account all relationships, directly and indirectly associated with the parties, and the dispute’s evolution in time. This information should provide the mediator with the tools to predict a narrower range of party values and steer the parties toward settlement.
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