Mediation Procedure and Principles
Mediation Procedure
At least thirty days before the mediation, I schedule a short (30 minute) call with all counsel and self-represented parties. We will discuss the case status and be sure its ready to proceed into mediation.
Second, we will discuss the structure of the mediation itself – who will attend and the need for persons to be present with FULL SETTLEMENT AUTHORITY. Also, as a trial attorney myself I sometimes viewed all mediation “joint sessions” as a waste of time. I only wanted to get into the private caucus to begin the negotiations. But after mediating the past five years I see the value, in most cases, for a limited and focused joint session in the mediation. This can be the traditional way, at the beginning of the mediation, or at an appropriate time during the session. I would never insist on this – as this is up to the parties and counsel. But it can play an important role, especially for the parties themselves. How to conduct this is one of the topics for our pre-mediation conversation.
Third, as the expression goes, you “can’t hit a moving target.” Therefore, I need to know the status of all negotiations prior to the mediation.
Fourth, in Personal Injury cases, its imperative that each side knows what the Plaintiff’s damages are, both the medical expenses and all wage or income losses. The “Howell” number – or the amounts that the Plaintiff’s medical providers have been paid for medical treatment – is a key piece of data we need BEFORE we mediate the case.
Finally, has enough discovery been completed and enough information shared to make the mediation worthwhile? If an important discovery dispute exists is the case really ready to mediate? We want to have enough shared information to ensure the success of the mediation.
Mediation Principles
1. We need to focus on Interests vs. Positions: In my trainings and mediation work I have learned the importance of discovering a party’s “interests” -- not only their “positions.” Positions are what a party asks for, and interests are the “why” – the reason the party seeks their particular position. This is a common focus in mediation trainings I have attended or participated in, and are the subject of a well-known book, “Getting to Yes,” by Fisher and Ury.
(A) How to identify interests: During either a joint session or in private caucus I will explore some of the reasons for a party’s position. I do not want to “pry” into private matters but do want to understand some of what each party’s concerns are, and their needs, hopes, desires and yes, even their fears. Usually a party has several interests, even behind conflicting positions that the parties express. Its also useful to know why the other party has not agreed with your position – and get at what interests underlie their positions too.
(B) Talk about your interests at the outset of the negotiations: The other side may not fully understand your interests, and vice-versa. Its helpful to do this as much as setting out your positions.
(C) Make your interests come alive: Give concrete details. It may be very helpful for you to set out in detail, and emphatically, not only what you are seeking, but also why. Be specific – so there are no doubts, and so that you can set out all of your legitimate concerns.
(D) Acknowledge the other side’s interests too: During the negotiations you can show that your side understands what the other side’s interests are, even if you do not agree with them. This demonstrates that your side listened and understands their interests – and the other side will listen better if you can show you too listened.
2. We need to “separate the problem from the person”: We often treat the problem (the dispute) and the person (the parties) as one. Instead, our goal must be to face and attack the problem, and not the parties or persons. We need to treat the parties as respectfully as possible and concentrate on resolving the dispute. Thus, we seek to “be hard on the problem and not on the persons.”
(A) It can be helpful to speak about what you or your client need, versus attacking the other side. This provokes less defensiveness and a greater chance they will hear and understand what some of your interests are.
(B) Sometimes the parties have ongoing and long-term relationships (partners, family members), and we may try to treat the problem and the inter-personal relationships as one – the relationship problems get entangled with the substance of the dispute. Its helpful to separate the relationship from the substance of the dispute and deal with the “people problems” separately.
(C) Three types of “people problems” –
(i) Perception problems (the way each side sees the problem can hinder the negotiations). Discussing your perceptions of the dispute with the other side openly and frankly can be of help! Also, putting yourself in the other’s shoes may let you better understand their interests and point of view. Casting blame is counter productive.
(ii) Emotion problems (feelings can bring impasse, especially when people feel their autonomy or self image are threatened). Making your own concerns clear and explicit can help de-escalate emotional issues.
(iii) Communication problems (sometimes parties try so hard to rebut the other side that they stop listening, or only try to impress their own party/client). Actively listening can help – acknowledging what the other side’s concerns and interests are, without conceding or agreeing to them, can help and shows you “heard” them. Showing understanding without agreeing – unless you can demonstrate that you heard the other side’s concerns, its unlikely that they will listen to yours.