This article first appeared in the Maine Lawyers Review, June 18, 2020.
Mediation and the process of resolving disputes can be an overwhelming experience, akin to being thrust into a baking competition with no recipes, a tight deadline, and judges eagerly awaiting the final product. Few of us would be able to successfully bake an apple pie under such conditions. Some may have the skills and may know enough about food chemistry to be successful, while others may be able to watch a competent baker and get the gist of it. And then there are the rare individuals who might have a good enough memory to take a shot at a second pie without following written directions.
However, most of us benefit from having a list of ingredients, utensils, and instructions for every pie we bake. Yet, even with the best recipe followed to the letter, we know that perfection is not assured. Baking is an artform; so is mediation. Here to help is a list of ingredients and a basic recipe for mediation. We will then discuss how and why some approaches may be more successful than others, and how technique and personality can be key factors for success.
Ingredient List
- 1 mediator, at least 2 parties with lawyers
- 1 mediation agreement with a confidentiality provision to be signed by the mediator, the lawyers, and the parties
- A brief confidential mediation statement from each party describing all factual and legal issues in dispute
- A bullet-point checklist from each party showing all monetary and non-monetary open issues
- One joint draft settlement agreement with boiler plate and open spaces for unresolved issues
Instructions
- Choose your baker — Select the mediator based upon experience, expertise, and temperament. In other words, select the best ingredients.
- Study your recipe carefully — Everyone, including the mediator, the lawyers, and the parties must be prepared in advance of the mediation. Each participant must know the pertinent law, the material facts, the issues in dispute, their own positions, and the positions of the opposing party. They also need to know their own interests and the interests of the opposing party, the options for settlement, and the objective criteria to be applied during the negotiations.
- Sift your flour — Separate perceptions from reality and positions from interests.
- “Mise en place” — (a French culinary phrase which means “everything in its place.") Have a pre-mediation telephone conference. As any good baker will tell you, preparation is key and having everything assembled and in place ahead of time increases the likelihood of a smooth process.
- Preheat the oven — Find a proper venue, which may now be a remote connection.
- Set your timer — Discerning the facts from tangled disputes and stressed relationships can take time. Be patient and engage in this process without whipping the parties into a frenzy.
- Check in often — A good mediator, like a good baker, does not leave the oven unattended. Neutrality is fine to a point, but often, genuine engagement by the mediator helps to forestall or break an impasse. This may involve case evaluation or direction, so choose a mediator who knows not only the fine art but the timing of engagement.
- Simmer — Soften positions until they reveal valid interests.
- Let it breathe — Be sure to cut option holes to make sure any steam escapes.
- Season to taste with objective criteria.
Discussion
Now that we’ve completed the baking experiment, let’s discuss why some mediations succeed, and others fail. There are many reasons for failure, and every case is different. Sometimes even best practices will not result in a settlement. Three very common reasons:
- The wrong mediator
- Lack of preparation
- Failure to distinguish between interests and positions
The Mediator
There are many qualified mediators, with different styles, experiences, and backgrounds. Picking one with a suitable combination of these factors for a specific case is crucial. For example, expertise in the law of the case may be essential, particularly in areas such as construction or bankruptcy where knowledge of the law and experience may make a difference. But many great mediators can do well in areas of law where they have limited familiarity. Sometimes style is more important than acumen in a field of law. Wisdom is another factor to be assessed; and wisdom may be found in many young mediators, just as it may be lacking in older mediators. People skills are essential. Does a mediator garner trust? Is he or she a retired judge? Can he or she read people? Lead people? Teach people? Will the potential mediator be able to shift from being a neutral facilitator to an assertive evaluator without losing the confidence of anyone in the room? Does a mediator have gravitas?
There are many ways to learn about a mediator. One may read an on-line bio, ask other lawyers, check academic credentials, or look for judicial experience. These are all positive preliminary steps. But the best approach to selecting a mediator after doing preliminary research is to conduct an interview. A good mediator will welcome a discussion about his or her qualities and style.
Lack of Preparation
This factor is linked to the selection of a mediator and a failure of participants to distinguish between interests and positions. The right mediator will insist upon preparation. He or she will want to learn about the case and the law involved. A good mediator will educate counsel and the parties on the difference between an interest and a position. Many of the steps discussed above, like the mediation statements and bullet-point checklists, will force counsel and the parties to focus on what is vital.
Interests and Positions
Litigation is position based. A position is a stance — a posture taken on an issue in an adversary proceeding. It may be a claim or a defense or a value placed upon damages. A position may appear to be an objective statement, but it is usually a subjective evaluation of intention.
An interest is very different. An interest is the stake that a party has in the outcome of a case and can be economic or personal. An interest is based upon need; a position is premised upon want. Lawyers translate client needs into client desires and then joust in the arena of want. Mediators work in the realm of need. Settlements are more often reached when the discussion turns from wants to needs.
Conclusion
Mediation is a process requiring skills, preparation, and knowledge. Like baking, success in mediation may be had by those who add a pinch of insight and their own personal touch to the recipe.
The Mediation Committee thanks the Maine Lawyers Review and Judge Kornreich for permission to republish this article in the Mediation Committee Newsletter.