By: Stephen P. Lagoy
Elsewhere in this issue you will read that CCBA has adopted a Mediation Program to be launched in 2011. Some of you may ask, what is mediation? What do mediators do? Why should I care? This article is intended to answer those questions.
Mediation may be defined most simply as facilitated negotiation. Unlike litigation and arbitration, mediation does not involve a decision maker nor are there formal proofs or arguments. Its goals include avoiding or breaking impasses, diffusing controversy, and encouraging parties to generate settlement options. These goals are foreign to the adversarial environment in which many lawyers live their professional lives. The mediator, usually selected by the parties, functions as a catalyst, rather than an adjudicator. The mediator focuses on the parties’ interests rather than the conflict and the positions they have taken. Often, the mediator’s most critical function is to assist the parties in determining their real values and interests.
Mediation has many advantages over litigation. Mediation can reduce the time and expense of dispute resolution. It can also reduce the emotional toll of litigation because the parties have more control over the process. They typically choose the mediator, when and where the mediation will take place, and how long the mediation will last. The parties also have control over the outcome. There is no settlement unless all parties agree, thereby reducing outcome uncertainty. Mediation also helps to improve communications between and among the parties. The process may also mitigate tensions, build understanding and trust, and avoid the bitterness often associated with adjudication. Mediation provides an opportunity to deal with the underlying interests in a dispute.
Skilled mediators employ numerous strategies to encourage the disputing parties to look behind the issues and their positions. The mediator addresses the expectations of the parties, both reasonable and unreasonable, and can often help to control unreasonable expectations in ways the party’s counsel often cannot. Once the underlying interests of the parties have been determined, there are usually more settlement options to consider. As a result, mediation can achieve more creative outcomes than other dispute resolution processes. Also, mediation often makes it easier to address complex issues among multiple parties than would be the case in a litigation setting. Because the parties control the outcome, there is a stronger sense of ownership in the agreement, and the settlement has a higher degree of commitment than one imposed by a court or arbitrator. Finally, mediation may provide a basis for future negotiations between parties with an ongoing relationship.
A successful (though ungrammatical) client of mine once said about his business, “It ain’t easy; I just make it look easy.” The same can be said of the mediator. Mediating a dispute is, in many ways, more of an art than a science. The mediator’s strategies must be fluid, varying from one mediation to the next and from one stage of the same mediation to the next, depending on the particular type of dispute and the parties involved. Doing the job well is hard work. The skillful mediator enables the parties to examine the dispute from a variety of viewpoints, helps them define the basic issues and interests, and explores mutually satisfactory options. To do this effectively, the mediator serves a number of diverse functions.
The first task of the mediator is to get the parties to agree to mediate and to establish the ground rules for the mediation. Given the highly adversarial context in which most mediations arise, this is often more difficult that one would imagine. Once the parties are at the table, the mediator must orchestrate the discussion, recognizing, and then guiding the parties through the stages of negotiation. The mediator may need to balance the power between the parties by using a variety of techniques to reduce the more powerful party’s influence so that more productive negotiations can take place. In many instances, the mediator functions as an agent of reality or a “prophet of doom” where a party’s position is unrealistic. Management of the parties’ expectations is an important part of the mediator’s job. The mediator often serves a useful function as a lightning rod or scapegoat, allowing parties to save face when it is necessary to move from a previously held position to a position that is more likely to result in resolution. Blame it on the mediator. If it moves the parties closer to a satisfactory resolution, so be it! In general, the mediator’s neutral perspective and broader view of the dispute allows him or her to help the parties develop options beyond their initial perception of the conflict.
CCBA’s Mediation Program is designed to make the many benefits of mediation more accessible to you and your clients. Take the advice of that archetypal country lawyer, A. Lincoln, Esquire. “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses and waste of time.” Give mediation a try.
Read more articles by Stephen P. Lagoy in the Unruh, Turner, Burke & Frees Mediation Blog