A ball. A bat. A glove. A field, A player. Baseball is brilliant in its simplicity. So too is mediation.
Sometimes we forget the basics, while other times we complicate them for a variety of questionable reasons. The process of mediation ought not become burdened with new terms, alternative tools, legalese, convoluted techniques, or confusion. Two opposing parties and a neutral. That is it.
A settlement conference is not a mediation. The difference is in the approach, the parameters, and the details. In confusing the two, a disservice is done to the clients. As important is the perpetuation of ignorance foisted on the public. It is the public, after all, that stands to benefit from mediation rather than the anguish of litigation. Expeditious and cost effective dispute resolution is better and eventually will be more acceptable than is prolonged litigation.
A settlement conference is part of the court proceedings and is conducted by a judicial officer. Therein lies a major difference. The black robe, whether worn or inferred, is ever present. The clothing, therefore, is yet another difference. In a settlement conference, attorneys are often asked by the courts for a memorandum of points and authorities. While advantageous at trial, and possibly required by statue for settlement conferences, it only serves to entrench the parties by encouraging them to posture. Therefore, for a mediation it is counter-productive. When local rules of court use mediations and settlement conferences interchangeably, the result is confusion.
In a settlement conference, discovery may be a goal of one or both sides. The sides may add to interrogatories and depositions, the settlement conference step. A skilled mediator will prevent a mediation from serving as merely an information gathering exercise. A settlement conference is valuable in finalizing proceedings before court sometimes, but it is drastically different from a mediation.
Attorneys sometimes cloud the issue when they have a different agenda from their client. This usually rears its ugly head, is unacceptable in mediation, and can be dealt with expeditiously by reminding the attorney, in front of the client, that multiple agendas may preclude the client from actually disposing their issue. While some attorneys resent the obvious implications, they rarely persist.
When attorneys become adversaries, the mediation process can be undermined. The neutral must react with clarity and firmness. Establishing and enforcing guidelines is a continual and essential part of the mediation process. When the attorneys become sales agents for the resolution, the neutral must utilize their assistance.
Judges, as I have recently discovered, do not distinguish between the two processes. In fact, a group of fifty judges recently extolled the virtues to me of pre-mediation written statements wherein they required the attorneys for both sides to write a memorandum outlining the strengths and weaknesses of their arguments. A skilled neutral will discern for his/herself what the strengths and weaknesses are. Acknowledging the questionable betrayal of the client, why should an attorney reveal to a judge that there are weaknesses in their arguments? Further, such a statement can only serve as a half hearted, on-paper negotiation if it is assumed that the settlement conference for which the memorandum is created is a mediation. Written statements serve to anger and frustrate the participants. Therefore, it is a bad tool for a successful mediation.
Mediation and settlement conferences are not the same process. A mediation, by definition, does not seek truth, does not adhere to rules of civil procedure, and has flexibility that is often lacking in a settlement conference. A mediation rarely allows the introduction of evidence or witnesses. They are superfluous to the process of reaching an accord. Lastly, mediation presumes that the parties will arrive at their own truths, absent blame, and with which they can proceed forward. Settlement conferences, as a judicial proceeding, seek conformity with the law and application of the law. There may be creativity, but much more severely constrained than in a mediation. Both processes have their own timely advantages. To confuse the two is unnecessary and complicates what ought to be a simple step.
A mediation is a symphony, of words, emotions, people, and goals. As in a symphony where there are types of instruments, genres of works, and styles of conducting, so too is a mediation. In fact, a mediator is very much like a conductor. He or she does not play an instrument, but rather brings all the sounds together, cohesively. A mediator does not offer substance in the mediation, but rather clarifies and synthesizes the information offered.
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