By Harry N. Mazadoorian
This article is the second of two seeking to identify some critical decisions with which counsel must deal in embarking on mediation of a civil dispute. Part one involved some best practices in connection with the decision to utilize mediation, deciding when and how to initiate the process, how to prepare the client and how to select a mediator. This part involves decisions during actual mediation.
When Should the Actual Mediation Begin?
This is not a trick question: The mediation should actually begin before the parties come to the session. Premediation conversations which the mediator conducts with counsel, and if possible with the disputants directly participating, are enormously useful. Most likely these conversations will take place by phone, and they can pave the way for narrowing issues, anticipating problems and giving the mediator a good feel for options of how to proceed and avenues to explore. A good deal of the mediator’s work needs to be done before the actual mediation meeting. Early ex parte communications are permitted in mediation, and they can be extremely productive.
Where Should the Mediation Take Place?
While busy lawyers are quick to recommend one counsel’s office or the other, there are dangers with doing that. First, counsel using his or her own conference room runs the risk of interruptions and trying to multitask during the mediation, all to the detriment of the mediation process. Further, clients sometimes wonder, “why am I at my opponent’s lawyer’s office,” fearing that they have somehow given up the home-field advantage and thus never acquire a feeling of comfort during the mediation. A neutral site, if possible, is preferable. Possibilities include the offices of the ADR provider or any place agreed upon by both parties.
Who Should Attend?
Mediation 101 instructs that the ultimate decision maker should attend for each side. In corporate disputes, it is sometimes suggested that the ultimate decision maker is too busy to attend but is “only a phone call away,” if needed. Herein lurk some real dangers, for the absent decision maker will not have the benefit of witnessing and experiencing what the mediation session has to offer. Reality testing, option building and interacting directly with the other side are of enormous value and cannot be adequately experienced from afar or from the report of a subordinate. Great efforts should be expended to ensure that ultimate decision makers attend.
How to Open Mediation
A common issue raised at the beginning of the mediation is whether to begin with a joint caucus or to keep the parties apart and immediately begin a “shuttle diplomacy”-style mediation. There is no inflexible right answer for all cases. Bringing hostile parties together after a fragile temporary truce has been achieved to attempt mediation can result in an early meltdown if extreme and bellicose positions are advanced in a joint session. On the other hand, not bringing the parties together can miss a splendid opportunity for the disputants to hear firsthand what the other side is thinking and experiencing.
The Importance of BATNA
By now, most counsel are familiar with the concept of a Best Alternative to a Negotiated Agreement advanced by the authors of the classic book “Getting to Yes.” Counsel and the mediator must be ever on the same page in seeking to address that question for all of the stakeholders. What will be the outcome if no settlement is achieved?
Seeking Nonmonetary Options
If the mediation process is viewed as a totally distributive process whereby a finite number of dollars is to be allocated, it will be a difficult (but not impossible) task to achieve resolution, But if nonmonetary options can be identified, many new opportunities can arise. Creativity in option building must be a primary task for all involved.
Making Maximum Use of Private Caucuses
During these private sessions with the mediator, parties have the opportunity to confidentially float options with the mediator which they have not yet advanced to the other side and to strategize as to how these options might be presented in the most positive way. Here the germ of an idea which has not yet been fully explored can be discussed, refined and prepared for presentation to the adversary. Here too, the parties have an opportunity to get some realistic feedback from the mediator as to the viability of their position. Much can be gained from preparing for and actively participating in the private caucuses.
How to Close Mediation
If agreement is reached, often after a lengthy and exhausting period of give and take, it is not unusual for parties to congratulate each other, pick up their papers and agree to have counsel memorialize the agreement in the coming days. However, there is great danger in leaving without a clear written and jointly signed memorandum of the key terms of the settlement. Without that, a number of factors, including “buyer’s remorse” or lack of clarity on one or more terms, could cause the apparent agreement to disintegrate. I find that it is a good practice to advise counsel, before the mediation, to put together a template for a settlement on their laptops and to bring it to the mediation. Not only does this facilitate drafting of the terms of the agreement, but it also can have the therapeutic benefit of shifting parties to a settlement expectation mode as they enter the mediation.
Dealing With Inability to Reach a Resolution
The ideal ending at a mediation is to reach consensus at the conclusion of the actual session. But that is not always the norm. Increasingly, counsel, especially in complex commercial matters, are reporting that resolution is not reached at the actual mediation session but sometime after that. Many mediations have a “tail” and while a number of major issues are resolved at the mediation, some defy agreement until a later time. Counsel should be prepared for that and the client must be advised of that.
There is no doubt that in recent years mediations have become much more prevalent in civil matters. Nonetheless, a number of common questions and misperceptions continue to persist. Critical decisions need to be made every step of the way. The importance of anticipating and carefully preparing for every phase of the mediation, before and during the actual session, cannot be overstated.
Diligent consideration by counsel to the above mentioned factors, as well as other factors which are not mentioned because of space limitations, provide the opportunity to optimize the chances of achieving a resolution during the mediation, or shortly thereafter. Like so many aspects of the practice of law, the secret is developing a strategy, preparation and attention to detail. And through it all, great care must be taken to ensure that the client thoroughly understands the mediation process and is prepared for the ups and downs of the roller-coaster ride ahead.•
Source: The Connecticut Law Tribune