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Achieving
Wise Resolutions in Mediation “Still another distinctive mark of wisdom is
that it cannot be misused. We recognize bad men as well as good may possess
other kinds of knowledge. We have seen artistic skill and scientific truth
put to evil use. But we do not ordinarily think a man wise unless he acts
wisely. To act wisely is to act well; even as to have wisdom is to use it.” I.
INTRODUCTION
Conflict is inevitable. However, the result can be beneficial or harmful by degrees, depending upon the circumstances, and depending upon the way in which the conflict is resolved. Chris Moore writes that, “In seeking to manage and resolve conflicts, they [people] have tried to develop procedures that are efficient; that satisfy their interests; that build or maintain relationships, where appropriate; that minimize suffering; and that control unnecessary expenditures of resources.”1 The litigation system is one of the more common procedures for deciding conflict2, with the majority of those disputes being resolved during the pretrial litigation process, either through negotiated settlements or mediation.3 The human dimension of litigation compels the most zealous advocate to view settlement as an essential discussion, whether pre-suit, early in litigation, after discovery and motion practice, before trial, during post-trial motion practice, upon appeal or all of the above.4 Why? Because “[t]he legal profession is a helping profession. Litigators, like all lawyers, have the privilege and responsibility to help their clients. This humanistic view of advocacy shapes and influences the work of the litigator.”5 Therefore, even if precedent were absolutely clear, and there was only one way the law could be applied to undisputed facts, but that the legally correct answer would not meet the needs of your client, then it would be incumbent upon you as trial counsel to transmogrify to the role of settlement counsel. 6 In the loosely translated words of Sun Tzu, ‘The smartest strategy in war is the one that allows you to achieve your objectives without having to fight.’7 As you already know, settlements at any stage of litigation, however, do not typically occur spontaneously; rather it is usually the result of sincere attempts between counsels to negotiate.8 For resolution to be achieved, all that is needed is a conversation because through the exchange of ideas, parties and advocates recognize issues, clarify their perceptions of them and understand the ways in which one issue bears upon another. The discussions may begin informally and may progress to something that has the potential to become an agreement. Alternatively, a variety of barriers may prevent fruitful direct negotiation.9 Regardless, some event in the life of the case will usually give rise to a specific discussion about settlement with opposing counsel, whether it be; informal encouragement of the judge, a settlement conference, summary judgment, a summary jury trial, a firm trial date, or a mediation. This latter event, mediation, has become common in many jurisdictions and in some, unfortunately unavoidable.10 The growth of mediation may be because of a need for a flexible process that can rationalize conflicting interests, and manage rapidly developing diverse issues, or it may simply be quicker, cheaper and less risky.11 Whatever the reasons, the professional mediator is emerging as a specialist within the legal community12 and the need/demand for such services appears to be increasing.13 The growth and strut toward maturity of mediation, however, has occurred in fits and starts.14 From the early 1980s, with George Mason University’s Masters Degree program in Conflict Management and with Harvard University’s sponsorship of the Program on Negotiation consortium in 1983, to the wealth of programs available today (by some estimates, over 100), practical and theoretical interdisciplinary academic programs have profoundly influenced the development of alternative dispute resolution processes. Since that time, new processes have largely come from individual practitioners, private organizations and institutions of higher education, rather than from rights granted by the federal government or administrative agency initiatives.
Beginning in the late 1980’s, new processes have tended to focus on
cooperation, identification of interests and recognition of the importance of
mutuality.15 These approaches
have been called many things, Mutual Gains Bargaining (MGB), Interest Based
Bargaining (IBB), Needs-Based, Positive-Sum, Problem-Solving, Principled
Negotiation or in the vernacular, Win-Win.16
Each approach is based generally on the premise that all parties would have
something to gain by negotiating, and that the agreement ultimately proposed
will be better than each party’s most favored alternative course of action.17
–
Rodney A. Max, Esq. II.
THE PROPERLY DESIGNED AND EXECUTED PROCESS
The cooperative approaches described in above, and which are much in vogue today, are designed to encourage parties to revisit their predetermined notions of settlement in light of new information received during the mediation. In practice however, mediation approaches vary according to what is appropriate for the circumstance in which the mediator, the parties and the advocates find themselves. It is simply impossible to fully describe the function of mediation or the mediator without describing the environment within which the mediator is functioning. They are inseparable. In some circumstances, a collaborative “expanding the pie” approach is not appropriate, rather the situation calls for a distributive process focused on a systematic discussion of the rights and power of a party relative to others.18 This could include each party being called upon to present a detailed, well-organized, multi-dimensional, persuasive opening statement. Later, resources may be devoted to an evaluation of the strengths and weaknesses of the legal and factual theories of each party’s position, identification of possible claims and defenses, and the remedies available if proven. Thereafter, each of the parties would likely be called upon to predict the possible outcomes if the case were tried under a variety of scenarios. The result of these analyses would yield a legitimate basis for compromise based on risk.
Additionally, hybrid approaches incorporate both collaborative and distributive
stages in a deliberate way, either from the outset or because of a specific
situation that arises during the course of the mediation. As discussed in
greater detail below, many aspects of what a skilled mediator does during a
mediation are unique to that particular mediation, however some
generalizations are possible. “Every man must decide whether to walk in the
creative Light of altruism or the destructive darkness of selfishness... This
is the final judgment. Life's most persistent and urgent question is; what
are you doing for others?” By the time a conflict gets to the mediation stage, often parties and advocates have become committed to their views and are settled into patterns of thinking and behaving that perpetuate conflict. What is needed is a concerted effort and deliberate techniques for reorientation to a common task of determining whether resolution is possible. What actions must mediators take in order to build such commitment? Despite the many available approaches, skilled mediators share some common practices. For example, much of the literature on the subject describes mediation as embodying five different stages: (1) pre-mediation; (2) opening ceremonies; (3) opening statements; (4) facilitated negotiations, and (5) reaching agreement. In the pre-mediation stage, the parties are contacted to discuss various process design options. Information is gathered confidentially and appropriate process recommendations are made. A conference call or pre-mediation meeting may be convened and position statement submissions may be requested. Prior to the mediation day, the mediator will guide the parties in their preparations and confirm their commitment to the agreed upon process. In the opening ceremonies stage, the mediator must be thoroughly prepared and be focused on the case at hand. The mediator will deliver a monologue that orients the parties and advocates to the mediation center, to each other and to the process. The foundation will be laid for positive conflict engagement along with pre-conditioning for difficult discussions to come. The mediator will emphasize the importance of the day relative to the resolution of the case and secure a joint commitment to begin. In the opening statement stage, at a minimum, the parties and advocates will greet each other and acknowledge the purpose of the day. This is a critical time where negotiating behaviors for the day are likely to be set. Because this is the best opportunity for counterparts to educate each other, typically, each of the parties and advocates will be given uninterrupted time to present their view. Active listening is encouraged, and the mediator will show appreciation for the participation in this stage. In the facilitated negotiation part of the mediation, the mediator will encourage the parties and advocates not to lock themselves into a position before they have taken full advantage of the opportunity to listen to their counterpart’s point of view and given full thought to their own interests. If positions are taken prematurely, the tendency is to use resources to defend that position rather than considering options. Secondly, the mediator will encourage an order or prioritization of discussions that will create momentum toward resolution. Thirdly, the mediator will continue to press for productive discussions of remaining issues while seeking to minimize frustration. During this stage, the mediator will also likely use a variety of techniques to encourage evaluation and reevaluation and sound decision-making. In the agreement stage of the mediation, the parties and advocates have formed some level of expectation for settlement. Resolved issues are revisited and opportunities for positive-sum negotiation may be further explored before the agreement is journalized. The case may be resolved, or conversely, the mediator will set the stage to take up negotiations again at some future point in time. Alternatively, part of the case may be resolved either as to some parties or as to certain claims. Typically, the mediator will assist the parties as they document the mediated settlement agreement at the conclusion of the session. 2. BEYOND KNOWING THE STEPS IN THE PROCESS “Mankind’s moral sense is not a strong beacon
light, radiating outward to illuminate in sharp outline all that it touches.
It is, rather, a small candle flame, casting vague and multiple shadows,
flickering and sputtering in the strong winds of power and passion, greed and
ideology. But brought close to the heart and cupped in one’s hands, it
dispels the darkness and warms the soul.”19 It is generally accepted that the presence of the mediator alters the dynamics of the negotiations. Since the mediator enters a preexisting dispute with no real authority, the mediator’s influence is therefore based upon the willingness of the parties and advocates to accept the mediator’s guidance. What do people demand of their mediator as a prerequisite to willingly contributing their resources to the search for resolution? One approach would be to first answer the more basic question, “What is the purpose the mediator serves?” Knowing and understanding the mediator’s purpose reveals whether the mediator is functioning well or poorly.20 In pursuit of these answers, please consider the following descriptions of the purpose of the mediator: “The mediator’s sole purpose is to assist the disputing clients and their attorneys in resolving the dispute.”21 “[t]he mediator attempts to improve the process of decision-making and to assist the parties to reach an outcome to which each of them can assent.”22 “. . . the mediator acts as a catalyst between opposing interests attempting to bring them together by defining issues and eliminating obstacles to communication, while moderating and guiding the process to avoid confrontation and ill will . . .”23 “The role of the mediator is fluid. It is determined in large part by the personal style and personality of the mediator . . . In other words, the mediator’s function is to help the parties establish the mutual trust and understanding that will enable them to work out their own resolution. The mediator merely acts to reduce the communication problems of the parties, make them take some objective view of their positions and interests, and maximize the verbal exchange of alternatives.”24 Given the foregoing, it is probably a fair statement that the reason the parties and advocates willingly accept the guidance of the mediator, is because more likely than not, that assistance will have some value to them, but how? The mediation process is analogous to a waltz in that participants in both activities miss the point when they pick a single spot and race to get there. Mediation is the artful execution of a complex pattern. It is the repeated execution of the pattern that gives the experience meaning; even profound meaning. From my perspective, the most significant quality a mediator possesses is to be worthy of trust. By being worthy of trust and attaining and maintaining the trust of the parties and advocates throughout the mediation; the mediator can be an effective listener and an effective questioner and therefore, an effective advocate for resolution. It also helps if the mediator is a good person.25 Active listening26 is one of the ways mediators build trust in the process and earn the confidence and respect of the parties. Active listening by the mediator, the parties and advocates increases the likelihood that important information will be shared, which will lead to better understanding and therefore allow for wise resolution to be achieved. Another significant skill is that of being a good questioner. Good questioning skills in mediation ensure that counterparts have understood the message that was intended and demonstrate continued commitment to dialogue.27 Finally is the rarest of qualities in a mediator; calmness. Calmness is a singleness of purpose, absolute confidence and conscious deeply personal power which can be focused. Each of us is born with the inherent spiritual task of learning to focus wisely, responsibly and with full knowledge of our humanity. A mediator who possesses this quality of calmness is morally centered and self-reliant. Combined with practical wisdom or prudence, courage and calmness, the mediator will be able discern the situation and know what to do, when and how
These qualities, may explain how the mediator adds value. Alternatively, the
additional value may be as follows: although settlement may be the hope, the
advocates may not know the best means by which to achieve it; or, although
experienced, the advocates recognize that the mediator has a superior
knowledge base and skill set to call upon gained from mediating cases every
day; or alternatively, the advocates may simply be unwilling to bear the
risks that are associated with unsuccessful direct negotiations. Since the
mediator has no client other than the process, the mediator is a zealous
advocate for resolution. “Chance favors the prepared mind”28 Tremendous diversity exists among mediation practitioners and among theorists; which is probably for the best. “To simply look on mediation from an external, functional standpoint, is in large terms, to miss what mediation does for the participants . . . defining mediation by what it is understood to be, by the participants, rather than by how it functions may be both enlightening and necessary to successful conflict resolution.”29 Diversity among practitioners is desirable because it is mediation’s response to the human dimension of conflict that makes it work so well. Mediation allows the participants to make decisions in the framework that works for them.30 The basis of a decision might be a sense of obligation or duty, rights or principles, application of objective standards, or a subjective view of justice. Alternatively, the basis of a decision might be preservation of personal relationships, compassion, compromise, empathy or concern for others. The mediator has the task of discerning what framework each party is using and then to design and execute a process that will allow those frameworks to shift towards each other, or to serve as an adapter between differing frameworks, taking input from one source and converting it in some way so as to produce an output the other party can receive. Therefore, mediators are necessarily as varied in their approach as the people served.31 In the words of the mediator Bernie Mayer, “I have had the opportunity to work on some incredibly challenging conflicts and with some amazing people, many of whom have appreciated my assistance. I have also encountered people who have wondered what difference the effort made, questioned the resources it took, or worse, thought my intervention made things worse. I used to joke that as a therapist, and later as a mediator, the way to feel successful is to take credit for everything that goes well and blame all the failures on circumstances or people beyond our control. In fact, I think we should appreciate that almost all of our successes are due to fortunate circumstances and to the underlying wisdom and courage of the disputants with whom we are working.”32 Consistent with that thought, in the American legal system, we place our trust for just decisions in two places: laws (made by people) and people who (as judge and jury) apply those laws.33 Looking to the inherent wisdom of “people” is not a new concept in any tradition, however. 34 The origin of these ideas in western thought is often traced to Ancient Greece.35 Some have opined that “[m]ediation probably predates the formal creation and enforcement of law, for humans in the social state seem to have a natural instinct to seek the guidance of others in settling differences between individuals.”36 This is also not a new idea.37 Recall that this Article attempts to address how mediation assists the parties in achieving wise resolutions; and in conclusion I offer mediators, parties and advocates this thought: The mediation process, when properly done, makes the wise resolution self-evident38 to parties committed to the concept of self-determination.39 View article in Adobe pdf print friendly version *V. Michelle Obradovic, Esq. lives in Birmingham, Alabama. She is a former litigator and trial attorney and is and owner of Wise Resolution, LLC. Her general mediation practice also includes complex litigation, mass torts and class actions. She is an Associate Adjunct Professor at Samford University, Cumberland School of Law.
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