From the First Mediation Blog of Jeff Krivis and Mariam Zadeh.
If you think it’s difficult to get two opposing sides to see eye to eye, imagine a situation where you’re mediating a seventeen party case with fifty-three participants. Master mediator Michael Landrum, based in Plymouth, Minnesota, did just that. He shares his insight and provides these ten tips for taking the pressure out of complex multi-party mediations:
1. Convene a “Process Design Conference” among attorneys (and possibly clients) on a separate day in advance of the actual mediation session. This approach has the advantages of (a) getting buy-in to the process (and thus a greater commitment to settlement); (b) enabling the mediator to see how each player behaves during only “process negotiations,” which is an indicator of how they will conduct themselves when the rubber meets the road and how to deal with them when the process hits potholes; and (c) functioning as a good forum for identifying “affinity groups” as referenced below.
2. Establish caucus “schedules” for the first couple of rounds so that attorneys can plan on getting other work done during their “down time” when the mediator is meeting with other parties. Counsel tend to be quite appreciative of this flexibility and since they were part of the process design, it builds in a sense of responsibility that they will carry out what they agreed to do.
3. As the process evolves, revise and post revised schedules. By the second day, the pace of the negotiations generally picks up markedly. Parties and counsel are likely to agree to stick around once the caucuses get shorter so as not to delay the progress being made. The willingness to develop an initial phase that respects counsel’s needs, helps to create their willingness to reciprocate when it is time to accelerate the process.
4. Identify “affinity groups” of parties with enough overlapping interests to create the potential for productive joint caucuses with all members of the group. Also, if you’ve correctly sensed the “affinities,” an amazing amount of progress can take place while the group members interact with each other during mediator’s caucuses with other parties – i.e., you come back into the room, and the group that, collectively, was willing to put in $X as their share now presents a contribution of $X+. Once this snowball starts rolling down the hill, the contributions tend to get larger and larger as you make the rounds in succeeding caucuses.
5. Use flip charts to develop a “Contribution (or responsibility, or both) Matrix,” i.e. what percent of the total pie does each party see for itself and the others. After making the rounds in individual caucuses (sometimes affinity group caucuses), convene plenary sessions to present the matrix and facilitate dialogue about the results.
6. Try to arrive at an initial consensus among all defendants as a group on what defendants “think plaintiffs should take” even if it appears to be low-ball – see below). Again, this process provides all kinds of information about who’s cooperative, who’s not and the reaction of others.
7. Ask individual defendants in caucus to assume for the moment or pretend, that they could get out by themselves (i.e., disregarding for the moment cross-claims, indemnification issues, etc) and ask them how much of that amount would they be willing to pay?
8. Reconvene plenary sessions to discuss this “Anonymous Total” and lay out the following scenario: “So, collectively, you think Plaintiff should take $____, but collectively, at this time, you’re willing to put together only an offer of $<>. Clearly, something has to change if we’re going to get this done, right? I now want to talk with each of you (either individually or in the by-now-established “affinity groups.”
9. “Divide and Conquer” – Work with Plaintiffs to determine what they would be willing to take from each Defendant, and start mini-mediations within the mediation. Depending on the law of the jurisdiction regarding release of individual defendants, work the specter of potential piecemeal settlements between Plaintiffs and individual Defendants or various affinity groups. If they unable to actually get out on their own, get tentative, hypothetical agreements between Plaintiffs and individual Defendants, that “If Plaintiff can get $X, $Y, $Z, etc. from the major players” they will expect no more than specified amounts from the bit roles. The recalcitrant ones then begin to perceive what trial would be like if co-Defendants become witnesses for Plaintiffs, i.e., leaving them twisting slowly, slowly in the wind. This process tends to break logjams.
10. As an alternative, the mediator can suggest an interim funding agreement to settle with Plaintiffs for $X and then arbitrate the allocation among Defendants.
Michael Landrum has mediated more than 1800 cases in 33 states in disputes involving up to $22 million in controversy. He can be reached at mlandrum@burklandrum.com.
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