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How we resolve our disputes

Entries in mediator (28)

Friday
Oct072016

Mediation - the Justice of our Times

In an article about statute of limitations reform for child sex abuse victims, the author notes that Cardinal Timothy Dolan of the New York Archdiocese offered mediation and compensation as a means of resolving the claims against Catholic priests. The article states “Mediation is the justice of our times in the vast majority of cases,” and praises the resolution to the extent that it provides a “more efficient and private path for those survivors who would not choose the legal system.” I haven’t seen any statistics verifying that mediation is used in the “vast majority” of cases but, in my opinion, it should be. 

As an attorney, I have had cases that settled literally on the courthouse steps, sometimes with a jury in the box waiting to hear the case. In retrospect, I believe many of those cases could have been settled long before the trial date with the help of a mediator. Unfortunately, some parties prefer not to think about settling until they have fully prepared for trial. A good mediator should be able to help the parties prepare their cases, or at least to think about what it will take to prepare their cases for trial, and then focus on possible resolutions long before trial. 

As a mediator, I have seen parties come to a realization of the true value of their cases and the true costs and risks of fully preparing for trial well before the court’s trial date. Even if the parties are not fully satisfied with the settlement, at least they are relieved to be done with the costs and risks of going to trial. Sometimes, they are happy to have gotten something they could not have gotten in court, like confidentiality. 

The New York Archdiocese offered mediation as a means to awarding compensation to victims of clergy sexual abuse while at the same time keeping each complaint and award confidential and out of court. The mediation was offered before any pleadings were filed in court, without having to go through lengthy and costly motions and discovery. In my experience, such pre-filing mediation is rare. If it works to the satisfaction of both victims and the church, perhaps this will set a precedent for other potential litigants. Then, mediation will truly become the justice for our times. 

Wednesday
Feb032016

Electronic discovery and mediation

Recently, I attended a seminar sponsored by the American Bar Association and FINRA titled Utilizing Mediation to Navigate the Perils of Electronic Discovery in Arbitration. I have previously written about effect that the effort and cost of obtaining discovery from adverse parties has on litigation and prospects for settlement. Today, with increasing amounts of information being stored in electronic formats, the cost and effort of obtaining that information has soared. Frequently, the parties need to retain an IT specialist to search, find and interpret the records and data. In complex commercial and financial cases, especially when allegations of fraud are involved, the level of distrust between the parties makes settlement and discovery even more difficult. Judges and arbitrators do not like to wade through the reams of pleadings and documents that are often necessary to resolve disputes concerning electronically stored information (ESI). 

Enter the mediator. By focusing the parties’ attention on the specific issues, rather than on allegations of spoliation of evidence and threats of sanctions for discovery abuse, the mediator can help the parties devise a plan to allocate the costs and schedule the timing and manner of production of evidence, thereby maintaining confidentiality and credibility with the court or arbitration panel. A mediator familiar with the concepts of proportionality, privilege and data mapping can help the parties minimize the time, effort and expense they put into discovery. Thus, they can concentrate on prepartion of the case for trial or arbitration. After they obtain the information they feel they need, the parties might then return to mediation to fully evaluate their settlement options. 

It takes more time, effort and money to fully and properly prepare a case for trial or arbitration today than it did before the advent of ESI. The federal courts and FINRA (which supervises arbitration panels in many securities cases) have done much work lately to help the parties and the tribunals minimize the costs and time involved in resolving modern discovery disputes. Attorneys would serve their clients well by becoming adept at using mediation to relieve the parties and tribunals of most of these burdens. 

Tuesday
Jan212014

How does a mediator spell success?

Like many mediators, I am often asked how many of my cases result in a settlement, as opposed to impasse. The question implies that a successful mediation results in a full settlement of all issues, and that anything less is an impasse, or failure. However, I have found that my clients can get more out of mediation than a settlement or an impasse, if they understand what mediation really is. 

A recent blog post defined mediation as “a negotiation process facilitated by a trusted neutral person having no power of decision.” The key word is “negotiation.” Many times, the parties to a mediation tell me they have already negotiated to no avail, meaning they have not reached a settlement. My question to them, then, is two-fold: First, why not? Why were they not able to agree? And then the finger pointing begins. Each side thinks it is going to prevail at trial, or at least do better than what the other side was offering. And that’s where their negotiations ended. My second question is what did you learn during your negotiations? Frequently, the only thing they learned was what the other party was willing to offer. They were focusing on positions and bottom lines. Of course, neither of them told the other what their bottom line really was, for fear of looking weak or giving away the store. Therein lies the benefit of mediation.

Participants in mediation can tell the mediator what their bottom lines are confidentially, without fear of disclosing their weaknesses to the other side. Thus, a mediator can see whether their is an overlap, or exactly how far apart the parties really are. More importantly, the mediator can focus the parties’ attention on issues rather positions. Who should pay how much to whom is certainly one issue, but there are always others. For example:

  • court costs and attorney fees
  • confidentiality agreements
  • in employment cases — future references, non-compete agreements, or eligibility for unemployment compensation
  • in franchise and dealership cases — the territory definition, accounting requirements, minimum sales or purchase requirements

The list goes on and is limited only by the parties’ lack of perspective and creativity. This is what the mediator must bring to the negotiation process. By opening up the discussion (and making it just that — a discussion, not merely a back and forth volleying of offers and counteroffers), the mediator can focus on all of the issues that might have to be resolved at trial (or even after trial) if the parties cannot agree on a settlement. Then, at a minimum, the parties might at least narrow the list of issues that might have to be resolved by a court.

I measure success in mediation by what the parties get out of it. Sometimes it is a settlement of all of the issues, and sometimes it is merely a better understanding of the dispute — not just the other side’s position, but the strengths and weaknesses of your own case. Like anything else, you get out of it what you put into it. If you go in looking only to find out what the other side is willing offer, that may be all you get out of it. But if you are looking for a better understanding of the issues and interests involved in the dispute, I have found that you can usually do exactly that. And that is what I call success. If that results in an immediate settlement of all of the issues, so much the better. If not, it will certainly lead to a more informed and satisfactory settlement down the road, or a better prepared presentation of the issues at trial.

Wednesday
Aug142013

Fly on the wall

How many times have you finished a negotiation and wondered how much more you could have gotten the other participant to agree to? Have you ever wished you could have been a fly on the wall in the other side’s conference room?

My website claims that a mediator can help people negotiate better than they can negotiate on their own. I’ll go one step further. A mediator can help people negotiate better than they can with other advisers, like attorneys, business coaches, accountants and public adjusters. This is not to say that those professionals are not helpful or worth consulting. They are often essential. You can tell your attorney both the strengths and weaknesses of your position in confidence because you have a legal privilege not to have that information disclosed to anyone else without your consent. That is not true of any other business adviser or coach. Only doctors, clergy and spouses have a similar legal privilege. But even your attorney gets the story of your dispute or conflict only from you. Your attorney or business adviser or consultant can serve only one master. Your opposition will not tell your advisers their real bottom lines.

In contrast to this adversarial model of negotiation, mediation has a great advantage. A mediator can talk confidentially to both (or all) sides in a dispute or conflict, and no one—not even a court—can compel the mediator to disclose what is said in confidence. Thus, the mediator can be the proverbial fly on the wall who listens to each participant’s strengths and weaknesses, hopes and fears. By hearing and seeing the bottom lines of all participants, the mediator can determine whether there is an overlap, where everyone’s interests coincide, or whether there is a gap and, if so, how large and important it is. In this way, the mediator can encourage the participants to move toward those positions or solutions where agreement is possible. The mediator can also suggest when a settlement proposal or offer may be worth exploring, and when it may not be worthwhile. As a result, the mediator can prevent the parties from leaving money on the table or from giving away the store.

I am not so naive as to believe that everyone is entirely truthful, even when speaking with a mediator in confidence. I have been lied to. I have played poker, where bluffing is part of the game. But getting people to talk in confidence often discloses real interests and hidden agendas, even when they are prepared or guarded by their own attorneys, consultants and advisers. Sometimes, as a mediator, I am most useful when people ignore me, like the fly on the wall. By simply listening to and observing both participants, together or separately (in confidence), I can spot opportunities for settlement and prevent people from giving up too soon. So let a mediator be your fly on the wall. The mediator cannot tell you all that he or she sees and hears. But the mediator can make your negotiations more productive, with less second-guessing and buyer’s remorse when it is over.

 

Tuesday
Jun182013

Facilitative vs. Evaluative Mediation

In my last post, I discussed the difference between neutral evaluation and facilitative mediation. Since that time, an article on the same subject appeared in the Wisconsin Lawyer, the official publication of the State Bar of Wisconsin. One of the authors of the article is Michael Moore, a fellow soccer Dad whom I have known for many years. The article does a great job of defining the two formats. Unlike me, the authors define both of these types of dispute resolution methods as mediation. I believe that only the facilitative method is true mediation. Neutral evaluation is more like non-binding arbitration or a mock trial. It is basically a win-lose scenario, but with non-binding results. Facilitative mediation is a search for a win-win scenario. Nonetheless, the article is an excellent introduction to the uninitiated, as well as a timely reminder to those who may not always remember that there is another way. Too often, litigation attorneys are like the man with a hammer — to them, every problem looks like a nail.  

Mr. Moore and his co-author clearly set forth the differences between what they consider to be the two most prominent types of mediation. What surprises me is that title of the article, “Take a Different View: Explore Mutual Interests with Facilitative Mediation,” seems to imply that the facilitative format is something new and different. Facilitation is different than evaluation, but it is hardly new. While it does seem to be gathering a following here in Wisconsin somewhat more slowly than in other states and parts of the country, I have written about and practiced it for several years now. I have noted that mediation should be considered primary dispute resolution, and that the shuttle diplomacy type of mediation (focusing on positions rather than interests) brings to mind Sam Goldwyn’s declaration that “If you want to send a message, call Western Union.”

Facilitative mediation is not easy to do well. Arbitrators and neutral evaluators can sit back and let the parties develop and deliver their positions. Facilitative mediators must probe to find the parties’ true interests and to develop creative solutions to the problem. But I agree entirely with the Wisconsin Lawyer article authors who conclude that “With the help of a facilitative mediator, parties are often able to resolve their disputes without the expense, frustration, economic loss, and business and personal disruption entailed in pursuing litigation.” Amen to that.