The Art of Mediation in the Real World

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I am a full time mediator, I train new mediators, and I teach mediation in Law School.  Most of us who teach this art or discipline seem to have a universal ideal that is a part of our lesson plans.  We teach that the facilitative approach is the way to “pure” mediation.  We teach the stages of mediation and the ideal for each stage.

I suppose that is how all practical materials are taught.  I certainly know that much of what I learned in law school applied only loosely to the actual practice of law, yet we had to be taught the “right” way upon which we would build our careers (and pass the Bar Exam).  The same method applies to training mediators.  However, because there are as many “right” ways to mediate as there are cases to mediate, the career cloak that covers the basic framework hangs far more loosely than in many other avocations.  This article is intended to address some of the deep folds within that cloak.

STYLES OF MEDIATORS

Are we facilitative or evaluative —or some hybrid?  The answer is—wait, there is no answer but the “pat” mediator’s response, “it depends.”

I suspect that almost all formally trained mediators begin every mediation in the facilitative style but as the mediation progresses, they drift toward evaluative.  In fact, in my experience there comes a point in time in many mediations that the parties or attorneys actually ask their mediator to become evaluative.  Those of us who like to be in control of our situations jump at this opportunity believing that telling counsel or the parties what their case is “really worth” or what they should do to settle, are shortcuts to settlement.  The truth of the matter is that this is many times just what the parties are looking for, i.e. for a “neutral” evaluator to tell them what to do without the expense of trial.  Many times the old adage, “be careful what you ask for” affects the process.  After being asked for an evaluation or a “mediator’s proposal,” the defense may storm out of the mediation complaining that the proposal is too high or, conversely, the plaintiff may complain that it is too low.  Typically, the offended party (sometimes, both parties are offended) will take the position that the mediator is biased because there can be no other reason for such a ridiculous recommendation.

A mediator’s proposal is something that must be used with care and a lot of thought by the mediator.  When the mediator is requested to make a proposal, he should take care to make sure that the parties/counsel are on the same page and know what they are requesting.  Often, a rejected mediator’s proposal will end the mediation, at least for the time being.

The proposal generally happens when the parties have reached an impasse on the numbers.  This is complicated by the situation in which neither side wants to move because they do not want the other side to know how high or low they are willing to move.  Of course, the first impulse is to simply “split the difference, ” but that is seldom appreciated or successful.  An effective mediator’s proposal should be principled and based upon the best judgment of the mediator rather than some simple mathematical magic.

            But I digress.  Back to the styles of mediation.

            In my opinion, all mediators should be well versed and “default” to the facilitative mediation approach.  Doing so allows the parties and attorneys to have the most control over the process.  When the approach works, it is almost like magic.  When it goes wrong, the Mediator may need to be wearing an outfit similar to a behind-the-plate umpire in Major League Baseball.  This approach, being a buffering agent or communicator between the sides is on the “touchy-feely” end of the spectrum and for Mediators who have been civil litigators in their law practices, may seem tedious.  But once the Mediator learns to use “open ended questions” to their maximum efficiency, the tedium diminishes and the mediation moves along.  In my experience, the major resistance to facilitative mediation in civil cases tends to be the lawyers.  I have had colleagues tell me that, as “learned” mediators, we should guide the process into the facilitative mode—essentially, don’t take “no” for an answer.

            I disagree.  While mediators should guide the process, we always have to remember whose case we are mediating and why we are there.  If we do our opening and information gathering phases well, we will know very quickly what they want of us.  It is my view that once we figure out what is expected of us, we should conduct the mediation as closely  to what we have been requested to do as possible.  At the same time we need to keep in mind that the reality is that we will eventually fall back into the method that works best for us irrespective of how it might appear to others.

JOINT SESSIONS OR INDIVIDUAL CAUCUSES?

            I think there is as wide a division among mediators about which of these approaches is the “right” approach, as in any other area of this discipline.  Some well-known and widely respected mediation professionals insist that the only way to satisfy the emotional needs of the parties is to allow the catharsis of the joint session.  It is suggested that some of those mediations must become quite loud before they become quiet and the road to settlement is blazed.  The theory is that when the matter is settled and the mediation is completed, the parties will leave the session satisfied that they said their pieces.  Maybe.

            On the other side are the individual caucus practitioners.  The Joint Session side of the issue seems to be convinced that Caucus practitioners fear conflict and want to avoid the uncomfortable feeling of being in the middle of angry disputants.  It is also said that this method puts too much power and pressure with the mediator.  The pressure is knowing all of that stuff the sides don’t want the mediator to share and the power is (intentional or not) when the mediator has the discretion about what to share and what to keep secret.  On the other hand, the Caucus Advocates argue that when properly conducted a separate session mediation will yield the same satisfactions and maybe even allow the parties to “vent” more freely than in a joint session.  The argument is that there is no reason that either party should feel constrained in individual sessions.  Of course, there are occasions where the logic doesn’t fit the circumstances.  One of my last litigated cases before retiring from the practice of law, I mediated a small case involving a contract for the sale of a maintenance vehicle.  My client sold the vehicle to the opposing party who decided a few months after taking possession of the vehicle on a poorly written sales contract, to stop making payments.  Since they were former friends, the emotions were rather raw.  Our opposition wanted separate caucuses while my client seemed not to care at the outset.  Our mediator did a good job and we came to a settlement with which both sides can live.  However, as we adjourned, my client became quite agitated that he had not been able to say his piece to the “bad guy” in the other room.  That has happened infrequently in my law or ADR practice.  When I mediate in caucuses, I encourage the parties to tell me anything they want me to say to the other side, and then some.  I also always promise that I will convey what they have to say to the other side.  Consequently, in those situations I have frequently been the recipient of bilious rants and anger.   Yes, it creates stress, but my experience has been that, in the end, even the angriest of the parties seems to be far more relaxed and relieved.

            In my “real world” of mediation, most attorneys and parties in civil cases request—sometimes insist upon—separate caucuses while in family law cases, I have rarely mediated cases in caucus.

DISTRIBUTIVE-INTEGRATIVE or TRANSFORMATIVE

            I have been mediating for a long time, and for some time before that, I was an advocate in mediated cases.  I have never experienced what is known is a “transformative” (kumbaya) mediation, nor have I ever spoken to any of my colleagues who have.  A loose description is convincing one side or maybe both, that their convictions about the dispute are wrong in the mediator’s hopes that it will go away.  In fact, many of the trainings I have attended have expressly excluded transformative mediation, except for the definition, completely.

            Most of the mediation we do for litigated cases involves an almost purely “distributive” model in which the parties all want money or something of monetary value in the end.  Certainly, integrative bargaining, which includes a mixture of alternatives, is often employed to a significant extent, but though there are phases, for the most part we distribute items of monetary value.   Almost always, in spite of our mantra of creating a “win-win” situation, in the end, someone goes home with a little more value than they came in with and the other leaves with less.  The hope, of course, is that neither party gives up too much.

            In family law, integrative bargaining is probably the most effective since there is such a mix of fear, anger and insecurity.  Achieving the distribution of generally inadequate assets while at the same time keeping the parties focused upon moving forward, requires quite a balancing act.

AT BOTTOM

            In the end, the real world of mediation muddles along with the practitioners using their skill, patience and experience to guide litigants of all stripes to a place where they can find peace from their disputes.   We facilitate evaluatively to reasonably integrate the needs of the party with the assets to be distributed in a forum that each mediator will decide is best for the case s/he is mediating on that particular day.

That is my real world of mediation.

 

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