“Discourage litigation. Persuade your neighbors to compromise whenever you can . Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
Abraham Lincoln, 1850
Mediation-definition: “In it’s simplest form, negotiation facilitated by a third party. The process is private, voluntary, informal and non-binding. The mediator has no power to impose a settlement.”
During the last decade, mediation has certainly become a preferred method of dispute resolution. After over 30 year of trial practice, I, and many like me, have concluded that our litigation system may be too costly in some instances, somewhat inefficient and sometimes plain ineffective at resolving conflict between parties. While I am still a strong proponent of the jury system and the seventh amendment, many times the outcome is determined more by chance and luck than anything else.
For over 20 years, I have mediated both court-ordered and private disputes and believe that mediation provides an efficient, cost-effective alternative for the vast majority of disputes for a number of reasons.
Mediation proceedings are confidential, Rojas v. Superior Court , 33 Cal.4th 407 (2004), and may not be referred to in further proceedings. This insures candor among the parties and a real opportunity to discuss all of the issues which may lead to a just and fair outcome.
The concept of “mediator confidentiality” should also be discussed here. While some mediators take the position that “everything is on the table” during a mediation proceeding, I believe the preferred method is to maintain confidentiality of matters discussed privately with the parties known as “caucus” and only disclose otherwise confidential material with the parties’ consent.
This has a number of advantages. Many times disclosing confidential material previously unknown to one side can drive the process beyond “impasse” and keep the parties moving towards resolution. Likewise, there may be some “face-saving” in the right situation where otherwise unreasonable positions, especially involving the parties rather than counsel, can be rethought and reevaluated.
Mediation allows the parties and counsel to control their own destiny through choice of the process and the mediator. How many times have parties been unwilling to resolve their disputes only to discover how costly that decision may have been when they are turned away by a court or jury, or conversely, forced to pay much more than they thought the case was worth? I recognize that some cases just have to be tried and there is no reasonable alternative.
But I have also concluded that the majority of litigated cases will lend themselves to the mediation process if only the parties and counsel would give it a try.
Mediator credibility is extremely important. The mediator must not only establish his or her own credibility, but the credibility of the mediation process itself. The mediator’s personal credibility will depend on his or her familiarity with the mediation process and people skills. The mediator encourages the participants to take the risks necessary to resolve their dispute by establishing rapport with them. He or she establishes procedural credibility by informing the participants about the mediation process and making sure they understand how mediation can best serve their individual interests.
Can anyone seriously doubt or argue that the cost of litigation has literally exploded over the last decade or so? Many times the value of the case is only exceeded by the expenses, fees and costs associated with litigating the matter.
Early resolution by mediation can save literally thousands of dollars, not to mention the emotional toll litigation takes on the parties. Many litigants have told me that, “their case is the first thing they think about in the morning and the last thing they think about before retiring at night.”
Mediation encourages civility and cooperation among the parties and counsel. “Posturing,” so prevalent in settlement conferences, can be avoided with the mediator setting the tone of the proceeding. If the parties are attending the mediation hearing voluntarily and there is a real desire to reach resolution, the mediator’s job is much easier. However, even in courtordered proceedings where reluctant parties and counsel are present, an aura of civility and courtesy can be created. The parties’ trust and confidence in the mediator can contribute greatly to this atmosphere which may lead to continued discussions resulting in later resolution. Within the boundaries of civility, parties should also be considerate of the other side’s position.
There are usually two (or more) sides to every dispute and an appreciation of another side’s position can contribute greatly to resolution.
Mediation allows for real creativity in fashioning resolution to disputes. Several years ago, I was plaintiff’s counsel in a brain damage case involving a young adult plaintiff who was badly injured on a college-sponsored field trip. The case was mediated before a very highlyregarded retired judge.
Prior to the proceedings, the plaintiff’s parents had been concentrating on the amount of money necessary to care for him. As fate would have it, the plaintiff was two months from graduation at the time of the accident. During the mediation hearing, when impasse was reached on a dollar figure, the possibility of the plaintiff receiving his diploma was explored. As luck would have it, the mediator had some connection with the college which led to plaintiff receiving his degree and the case settling at a figure that, while not representing everything the family had hoped for, was certainly within a fair settlement range.
Often, innovative solutions can be explored and achieved with the cooperation of the parties and a little “creative thinking” on the part of the mediator. Many disputes involve considerations besides only money and recognizing those issues can move the matter beyond impasse and toward resolution.
In many cases, the mediation hearing is the first opportunity for the parties to speak candidly with each other and to “air their differences.”
Listening by the mediator is of extreme importance here. Many times the parties, and especially the plaintiff or plaintiffs feel the need to tell their story and no one has really listened up to that point, including counsel. Not long ago, I had a plaintiff tell me following a successful mediation hearing that “I was the first person who had really listened to her about what had happened.” As I recall, we discussed not only the case, but her family, some personal problems and other matters not directly related to the resolution but important enough to the plaintiff to bear discussion.
Speaking privately to the parties, in “caucus” is also an excellent method of communication. Many mediators conduct a very brief “joint session” and then go right into separate session with the parties and counsel. I call this “shuttle diplomacy.” Keeping confidences and gaining the trust of the parties can be achieved in this fashion. Sometimes, a frank discussion just between counsel “refereed” by the mediator can produce significant results and movement.
Communication may also require “scratching beneath the surface” to see what is really driving the dispute. What do the parties really want? In the commercial context, the parties may have an ongoing business relationship which is being jeopardized by the dispute. Can a remedy be fashioned which satisfies the litigants, but keeps the relationship intact? While not required, I encourage the submission of mediation briefs which may be confidential or shared with the parties as indicated or desired.
Communication may also involve the controversial subjects of “mediator manipulation and deception.” What’s wrong, some ask, if, in the service of self-determination, mediators use these weapons of influence? These issues obviously raise ethical concerns which are beyond the scope of this article. However, under the guise of “self-determination,” the parties should recognize that some “manipulation and deception” may occur. COMPROMISE:
I have always felt that the best resolution has occurred when all the parties leave the mediation process “just a little disappointed,” but with a settlement in hand.
Mediators can be extremely effective in moving parties toward compromise in a spirit of conciliation. Again, determining the “real interests” that are driving the dispute may achieve resolution where focusing on the “surface issues” will not.
The compromises involved have been described as the “negotiation dance” which is a series of continually diminishing moves through which parties communicate and, hopefully, arrive at agreement. The most important thing to know about the “negotiation dance” is that it cannot be short-circuited. This may be particularly frustrating since it means that the bargaining process may become time consuming and, therefore, more expensive. However, succumbing to the temptation to short-circuit the “dance” can result in settlements that are unsatisfactory on reflection and, more importantly, unworkable in practice. (Mediation, The Art of Facilitating Settlement, Professor L. Randolph Lowry, et. al. Pepperdine University School of Law, copyright 1997.)
Compromise may also be piecemeal when total resolution cannot be achieved. Some parties may be more interested in resolution than others. A “divide and conquer” approach may be effective. Many times, the entire case will resolve when reluctant parties realize that others are settling around them and they may be the only one sitting at the counsel table.
If possible, move the parties towards collaboration on a solution. They will feel immersed in the process and know they had a significant part in the outcome. This is especially effective in the commercial context where an ongoing relationship may be affected by the one-time dispute.
A classic example of collaboration involved a hypothetical settlement conference where two parties were arguing over an orange. Finally, in frustration, the settlement officer cut the orange in half and gave each party their share.
Several months later, the parties were discussing the matter and realized that one wanted the juice and the other the rind. Digging beneath the surface would have disclosed these interests allowing the parties to collaborate on a solution in which they both got what they wanted. While an oversimplification of the process, this example illustrates the need for determining what the parties really want.
Finally, a resolution brings closure and certainty to the parties and relief to all involved. The importance of ending litigation cannot be overestimated or undervalued. Voltaire, the French philosopher once stated “I was never ruined but twice. Once when I lost a lawsuit, once when I won one.”
Counsel will move on to other matters, but for the litigants, closure can be truly life-altering. This is a point that should be made at the commencement of the mediation hearing and reinforced throughout. Gaining the parties confidence and trust by listening to them, being patient and showing a real interest in their predicament will make closure a reality in most cases. I use a “Stipulation re Settlement” document when settlement is achieved which will support a Motion to Enter Judgment pursuant to Code of Civil Procedure § 664.6.
When the parties cannot reach agreement after one or more sessions, a final weapon in the mediator’s arsenal is the “mediator’s proposal.” I hesitate to offer my evaluation of a particular matter until I have concluded that “true impasse” has been reached. With the consent of all parties, mediators can then make a “proposal” about their evaluation of the matter which the parties are free to accept or reject. Sometimes a “cooling off” period is necessary following a mediation hearing and the “mediator’s proposal” gives the parties and counsel time to reflect on what has occurred and whether or not they want to continue with litigation.
This article represents a broad overview of the mediation process and there are probably as many different mediation tactics as there are mediators. Likewise, not all matters will be resolved by mediation. However, I believe the principles enunciated in this article can bring resolution in most cases or, as importantly, move the parties toward resolution at some point following the process. It is certainly worth a try.
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