Laura A. Athens
Many attorneys know and appreciate the benefits of mediation. Those who are familiar with the benefits of mediation readily propose and eagerly participate in it. However, if you encounter resistance, how can you address it.
You do what any good mediator does: start asking probing questions to determine the underlying reason for the reluctance. This article reviews some of the common sources of resistance to mediation and ways to overcome it.
Lack of Understanding of Mediation and Its Benefits
Sometimes education of the hesitant party is in order. You may need to explain what mediation is and what it is not. As prevalent as mediation is, some still do not fully understand the process. It may be helpful to review some basic cannons. Mediation is voluntary. The parties must choose to participate and may discontinue at any time. Engaging in mediation does not preclude pursuit of traditional litigation or other forms of alternative dispute resolution (ADR). The mediator has no authority to impose a decision or force any particular outcome. The mediator is a neutral, impartial professional who helps the parties communicate concerns, identify issues, explore options and reach solutions.
There may be confusion about the different forms of mediation. The facilitative approach focuses on helping parties to discuss their interests, generate potential options and reach their own mutually satisfying agreement. In evaluativemediation, the mediator often shares opinions, evaluates legal positions and predicts likely outcomes to guide the parties in reaching a resolution. Transformative mediators empower the parties by fostering their recognition of each others’ perspectives, building understanding and transforming the quality of their interactions.
You may wish to share with the reluctant party the many benefits of mediation. Mediation promotes communication, collaboration and joint problem solving. It is efficient and cost effective. Confidentiality and privacy are protected. Mediation provides the parties with a unparalleled opportunity to craft a unique agreement that — with the help of the mediator and legal counsel — addresses their particular concerns. Together, the participants are able to reach innovative, mutually satisfying and enduring solutions that neither party, nor a judge or jury, would have contemplated.
Mediation is particularly advantageous to parties who have a continuing relationship. The mediation process builds trust and rapport, preserves the relationship, and teaches fundamental negotiation skills that can be utilized if and when future disputes arise. Parties actively engaged in the negotiation process tend to be more invested in the result and less likely to pursue future litigation.
Concerns about the Mediator
At times, opposition can stem from the particular mediator proposed by a party. Opposing counsel or their clients may not be comfortable with the style or reputation of a proposed mediator. They may have had a negative prior experience with the mediator or the entity with which the mediator is associated. Some may prefer a mediator with subject matter expertise; others may prefer a mediator who uses a particular approach.
Some may wish to pursue private mediation; others may wish to utilize an alternative dispute resolution center. In some cases, mediation is available through a judge or magistrate who is not presiding over the case. If there is a concern that the other party will reject a particular mediator based on a perception of bias, Professional Resolution Experts of Michigan (PREMi) offers a diverse panel of seventeen neutral ADR providers with a wide-range of subject matter and process expertise to assist legal counsel and their clients to resolve disputes.
Concerns about the Mediation Process
Mediation is not an all or nothing proposition. One of the hallmarks of mediation is that the process is flexible and user friendly. If you sense that an attorney is interested in mediation, but seems concerned about it being premature, you may want to point out that mediation serves many purposes and is valuable at any stage of litigation. Engaging in mediation early can clarify the issues in dispute, promote informal and expeditious discovery, result in full or partial resolution and make the entire litigation process less adversarial.
Selection of a mutually convenient time and place for the mediation is crucial. Careful and deliberative planning of the time, place and duration of the mediation, consideration of the needs of all participants is essential. Pre-planning allows the parties to focus on negotiation, rather than being distracted by other concerns. If work or other obligations preclude pursuit of mediation during normal business hours, many mediators offer flexible evening or weekend options. A good mediator will work to accommodate the schedules of the participants and ensure that all participants are comfortable with the time and location of the mediation session. If necessary, rely on the mediator to help you plan the mediation process and identify the key participants to foster collaboration and promote an optimal outcome.
A disparity in the economic resources of the parties often exists. An even split of the mediation costs is not always an equitable arrangement. Each party’s ability to contribute to the costs should be assessed. To reach a fair cost sharing arrangement, you may wish to suggest proportionate payment of the mediation costs based on the respective resources of the parties. Mediation costs should not serve as an obstacle when utilization of it often results in substantial cost savings as well as greater satisfaction with the outcome.
Those who have limited or no mediation experience, may feel like a “fish out of water.” The philosophy underlying mediation may be counterintuitive and foreign to them. Mediation requires a paradigm shift from positional bargaining to joint problem solving. Attorneys are accustomed to zealously advocating and defending the client’s position, not focusing on the interests of both parties.
Some attorneys may fear that if their clients can reach agreements with the help of a mediator, then legal representation may be viewed as superfluous. Because the mediator’s role is to facilitate the parties in reaching a mutually agreeable resolution and not to provide legal advice or usurp the role of the attorney, the parties often want and need legal representation during mediation. While the lawyers’ roles shift from zealous advocates to trusted legal advisors in mediation, their counsel is equally valuable. Clients will continue to rely on their attorneys to advise them of their legal options, assist them in evaluating potential solutions, drafting settlement terms and protecting them from exploitation.
You may be concerned that proposing mediation may be perceived as a weakness. However, proposing mediation demonstrates to your clients that you understand the importance of seeking more expeditious and economical ways to resolve disputes. Fewer clients are willing to tolerate the extraordinary costs, considerable time commitment and excessive delays associated with traditional litigation. Mediation allows parties to be masters of their own destiny. By promoting mediation as an option, attorneys enable their clients to take a more active role in the dispute resolution process and have more control over the ultimate outcome. Successful, expeditious resolutions will lead to more satisfaction, increased perceived value and generate more business. Your clients will thank you for suggesting mediation and will be more likely to refer their colleagues and associates to you.
Laura A. Athens is an attorney, mediator, and arbitrator in Farmington Hills. Her practice focuses primarily on education law and disability rights. She provides legal representation and alternative dispute resolution (ADR) services in special education matters. She previously served as a hearing officer in special education due process hearings and in vocational rehabilitation matters She continues to mediate special education, vocational rehabilitation, guardianship and disability rights cases. As an adjunct professor at Wayne State University Law School, Athens taught education law, health law and bioethics. She also taught Legal Research and Writing at Washington University School of Law. She is an associate of Professional Resolution Experts of Michigan, LLC (PREMi, https://premiadr.com) and has served on the State Bar of Michigan Alternative Dispute Resolution Council and as a former Chair of the Oakland County Bar Association ADR Committee. Athens has published numerous articles on education law and ADR issues and frequently lectures on school-related topics.
This article originally appeared in the family of Detroit Legal News publications on March 28, 2014, and is being reprinted with permission from the publisher.