MEDIATION: A way out or hard work?
By: Donald B. Cripe, JD/AAA/AHLA/CAOC/CLMA/SCMA/ACR
A number of years ago, right after I closed my law practice in favor of providing full-time ADR services (the trend now is to refer to this as “CDR” or Consensual Dispute Resolution”), I bumped into an old-time mediator whom I had known for many years. When I told him of the change in my career he commented, “So, you don’t want to work so hard anymore.” I smiled and because of my respect for the gentleman, I gently disagreed. My disagreement resulted from my relatively humble experience . In the years since then I have recognized just how far off-base my friend was in his observation.
I suppose that a mediator can choose a style that presents a minimum of stress and anxiety for a mediator. In my monthly reading of ADR articles I often see patterns of others who indicate that certain styles of mediation might do just that. I guess I have chosen not to follow that advice. One model of mediation suggests that the mediator be “above” the dispute. In this model the mediator acts primarily as a message carrier to buffer the information transferred between the caucuses. An adjunct of this style is the joint session at which the mediator acts as a facilitating “referee” of sorts in which he or she works to clarify the positions and interests of the parties while allowing them to communicate and negotiate directly. I have never been comfortable in that style though I use it in some forms of mediation in which the circumstances demand that the parties be together. That style of mediation has its own set of stressors and complications. But it relieves the mediator of the burden of confidentiality as between the parties and knowledge about the parties and their cases that the parties do not wish to be shared with the opposition.
Though I am happy to conduct mediation in any style desired by the participants, my preferred style is the separate caucus arrangement in which the parties negotiate through the mediator. I guess the skeptic would say I am a “control freak” with narcissistic tendencies. I disagree. If anything those of us mediate in this style can more closely be defined as masochistic. In spite of the insistence of my old friend, this style is stressful for the mediator and is hard work. However, this style has allowed me to succeed in settling disputes. A mediator who employs this is in the style must be able to keep track of numerous facts: which is confidential and which is not; the amounts of demands and offers during the “dance” and, if we know, the limits of both sides without revealing the information to the parties. Additionally, this approach may inflict upon the mediator status as something of a “whipping boy” when confronting parties and counsel who are angry or upset. Nevertheless, with all of this stressors and obstacles, the act of creation in putting together a resolution to a complicated dispute is exhilarating.
Well-known mediator Gary Friedman uses the example of the “V” in describing the process. The bottom of the V is where the negotiation shifts toward resolution. My model is that of a dramatic play with rising action, peripetry and then falling action to where the settlement agreement is signed. In this model, the rising action is very stressful and sometimes very confusing. It is not unusual for the parties and sometimes even the mediator to come to a premature determination that the case will never settle. When I am teaching mediation classes I tell my students, “never stop talking.” My theory is that not only does the encouraging chatter of the mediator help keep the parties thinking, but negotiation stops only when the communication ceases. Also, the constant encouragement of the mediator acts as a stress reliever since the parties have the reassurance that someone who cares is working to help come to a solution to the problem.
The peripetry in a mediation can be described to resemble several types of physical relief. For me it is like someone opened a window in a stuffy room. We all begin to breathe and a rush of adrenaline fuels the determination to settle the case. In my experience once the participants reach this point in a mediation they find it hard to go backwards. After all of the work getting to this point they seem eager to bring the matter to a reasonable and subjectively fair conclusion.
Sometimes the next phase, the falling action, takes the most time in a mediation. Once we begin to find areas of agreement astute parties and lawyers (and sometimes observant mediators) will discover problems with the arrangement or other matters to be negotiated along the way. I have found these problems are seldom unresolvable because at this point the parties have shifted their prospective from dispute to resolution. Thus, the parties become more amenable to solving problems than creating problems. As the parties take each step toward a final resolution, heart rates go up and excitement surges. Even when one party is presented with a distasteful decision, that party tends to be more comfortable with compromise in the name of resolution.
As a mediator this phase of a mediation is, emotionally, much like closing argument in trial-which was my favorite part of trying cases-quietly the mediator can bask in a sense of success while enjoying the relief expressed by all parties. It is very important, however, that the mediator remember that he or she should “never stop talking,” and that consistent encouragement is very important to keep the parties focused on resolution and distracted from any disappointment they may feel from the compromise.
If my old friend reads this article, I need to stress to him that, for me, mediation is very hard work. But it is also important for the reader to know that mediation can also be extremely exciting and satisfying and not only for the mediator. Mediators and counsel frequently see the “buyer’s remorse” expressed by parties to a dispute after a mediation has concluded. But we have also seen that within a few days or maybe even a couple of weeks, that remorse turns to relief and the parties are happy that the dispute is resolved in the cost of litigation ends.
When the parties choose a mediator they should find a mediator whose style matches their client and their needs. There are as many styles and sub-styles of mediation as there are mediators. If the parties choose incorrectly their needs may not be met satisfactorily. I do not suggest that one style is superior to another in all cases. What I suggest, however, is that mediation is not a “one size fits all” proposition. An awful lot can be at stake in dispute resolution and there must be a reasonable fit for every party.