By Sheldon J. Stark – Mediator and Arbitrator
1. Introduction
When mediators build a relationship with party decision-makers, gaining their trust and promoting their confidence in the mediator and her process, they create the foundation for a successful mediation process.
(See, https://www.starkmediator.com/wp-content/uploads/sites/4/2023/10/Building-Trust-1.pdf).
2. Advance Knowledge
Typically, I know the lawyers who select me, but rarely have I met or known their clients. For me, then, the relationship building process begins the morning of mediation when I convene a confidential, private, introductory/get acquainted meeting with each party and counsel.
By the time of that meeting, I’ve gathered valuable information about each party. I’ve read the written submissions which describe the conflict and the parties. Advocates often attach supporting material such as deposition transcripts, email exchanges, and relevant documents. All shed light on what parties knew, how they think, and how they became embroiled in the dispute. I try not to pre-judge. The summaries, after all, are drafted by advocates and may not be an accurate or honest picture.
After reading the summaries, I call each lawyer on a confidential ex parte basis a day or two before the start of mediation. “How can I help you with your client?” I ask. “Is there a message I can reinforce or a message you’ve been reluctant to deliver on which I can do the heavy lifting?” The question elicits valuable insight essential to my preparation.
Just as I am learning about them, the parties generally learn something in advance about me. First, their attorney has told them good things about me, particularly why I was selected or agreed to. Second, they have my Curriculum Vitae. Third, most people conduct a computer search to see what they can learn. That’s what a content-rich website is for. See, www.starkmediator.com.
3. The First Meeting
I look forward with great anticipation to meeting parties for the first time. It is not at all uncommon to find they are nothing like their description in the papers.
While I don’t pre-judge, I bring certain presumptions to our first meeting. The conflict is the source of stress. For many, litigation has been an emotional roller coaster ride. Lots of money has been or will be invested in attorney fees and costs with the prospect of more ahead if the dispute doesn’t resolve. Their business or work has been disrupted. They are anxious about their business reputation, continuing disruption of their enterprise, exposure of private, sensitive or embarrassing information, financial loss, damage to future economic prospects, and more. Few come to the table with high expectations their matter will be resolved. Rather, they are often highly suspicious, skeptical of the mediation process, and at least slightly worried their counsel is losing confidence in their claims or defenses. All these issues surface one way or another during our first meeting without my having to directly ask.
Significantly, no matter how experienced or skilled they are at negotiating in their work or professional lives, they generally have little or no familiarity with how law suit negotiations unfold. A key part of preparation is to give them a better understanding of what to expect. The more their understanding is deepened, the greater the likelihood they will recognize the value of the process. See, https://www.starkmediator.com/practice-tips/2021/05/03/negotiation-101-what-parties-should-know-about-negotiations-at-the-mediation-table/
4. Confidence Building Measures
If the mediation is in person, I always plan satisfactory food service. Many parties are too anxious to sleep the night before a mediation. They may not have had time to catch breakfast. By providing coffee, tea, bagels and cream cheese, and fresh fruit at the mediation, I meet their immediate physical needs, demonstrate sensitivity to their situation, and increase their confidence that there is something worthwhile and positive going on. Besides, as my grandmother taught me: Food is Love. It’s the grand oral equation. Plus, I add cookies and chocolate in the afternoon – reducing the chances we’ll break for lunch and lose momentum.
Before soliciting information, I discuss the confidentiality of the information they will be providing in caucus. The entire mediation process is, of course, confidential as to the rest of the world. What about our private, ex parte caucus communications? I promise that anything they say which they do NOT want communicated, will be protected from disclosure. If I believe communicating confidential information would be helpful, I promise to ask permission first and explain my reasoning. Final decision remains theirs. The promise of confidentiality increases party trust in the mediator, confidence the process is safe, and simultaneously encourages candor.
5. Information Gathering
In General: My very first question after explaining confidentiality is, “How ya’ doin’?”
Not expecting that question, most parties are demonstrably relieved, increasing comfort with the process. With a nervous laugh, they typically say they are a bit anxious but otherwise fine, to which I respond: “as your head was hitting the pillow last night any issues or concerns going through your mind?” If something is troubling them, this approach typically brings that out.
I then ask whether they have any questions for me. Typically, there are none. Occasionally, however, their “question” opens the door to a robust exchange about important topics.
Mediation/Litigation Experience: I’m a great believer in the need to educate parties and advocates about the unique opportunity presented by mediation as a dispute resolution process. The more they know and understand about mediation, the more benefit they will derive and the greater the likelihood of a satisfactory outcome. Mediation is not simply another stop on the litigation express. It is truly an opportunity to take a step back from the conflict, climb up to the balcony, examine perspectives, take a hard look at the risks and their magnitude, and collectively search for a resolution providing mutual benefit and closure. See, https://www.starkmediator.com/wp-content/uploads/sites/4/2022/12/A-Guide-to-Mediation-Advocacy.pdf
Their experience and understanding provides a golden opportunity to explain my individual approach to the process and what they can expect from me throughout the day. I assure them mediation is entirely voluntary. No one will twist their arm to settle or deny them food and water until they cry “uncle”. My job, I explain, is to provide them all the information available so that they are able to make a good judgment about whether to settle and on what terms. See, https://www.starkmediator.com/articles-links/i-know-what-your-job-is-reframing-the-role-of-mediator/
Party Preparation: I want to know if their preparation included anything other than speaking to their lawyer. Did they do a Google search about mediation? Did they read any articles? Did they visit my website? Did they review their own lawyer’s mediation statement? Do they think it is accurate? Was anything important omitted? Did they read the other side’s submission? Do they have an understanding of the strengths and weaknesses of their case? As mediation is nothing if not an excellent process for the exchange of information, this discussion reveals what parties need to know to make resolution decisions.
Party/Business Background: After the various preliminary matters mentioned above, I turn to learning about each party or, in a commercial dispute, their business. “Tell me about [yourself/your business],” I ask; then sit back and listen. “Sometimes it becomes important to know something about [you/your business] when I’m in the other room. I know a little from the written mediation summary, but not that much and I generally can’t leave the room to come over here and ask, so let’s talk about it now.” People appreciate the opportunity to tell you who they are or describe the enterprise they’ve built or proudly worked for. Patient listening instills confidence, builds credibility, and enhances the relationship.
Goals and Objectives: Next, I solicit party goals and objectives. “Without telling me a specific number, in broad general terms, what do you hope to gain from the mediation process today? What are your goals and objectives?” Some parties appear shocked as no one has ever asked them this question. Before completing their list, I ask counsel if they have anything to add. Sometimes the list of goals reveals whether the party is approaching mediation realistically or not. Sometimes, the list leads to a better understanding of the underlying needs and interests driving the dispute. In any event, this question has a powerful impact on the development of trust and confidence in the mediator.
6. Techniques
One message: After we’ve had a thorough discussion in the “get acquainted” meeting, I ask if there is any one message they truly want delivered to the participants in the other room. Sometimes this can move the mediation forward – as with declarations of an intent to find an off ramp to the dispute – and sometimes it can stimulate a constructive discussion about who the other side is, what motivates them, and how best to communicate with the person making the decision in the other room.
Service as Negotiation Coach: As the only person who will be in both caucus rooms, the mediator is in a unique position to anticipate how various proposals and counterproposals will be viewed when communicated. Part of the mediator’s role is serving as a negotiation coach. I remind parties that I will not tell them what to settle for, but I do ask permission to “push back” on an unproductive proposal to see if we can’t figure out a better way to approach the next round. Advice about how to “package” a proposal can be especially constructive.
Reframing: We train new mediators in the 40-hour basic training to use reframing when parties make opening statements. The technique is equally powerful throughout the day, especially when parties escalate or crank up the emotions. Reframing shows parties that you’ve heard and understood them. If I can repeat what they said in my own more neutral or abstract words the temperature is lowered and we can move forward.
Providing Process Information: Discussion topics with counsel often involve legal issues like dispositive motions, the admissibility of evidence, jury selection, and judicial track records. Parties feel left out and confused. I bring the clients back in by explaining what we are discussing and why it might be important. “Judges have track records,” I might explain. “The judge you’ve drawn in this case is considered plaintiff oriented. That means, a motion to dismiss these claims is unlikely to be granted. (Or vice versa). We’re discussing what that might mean for this case.” Parties appreciate these explanations and start paying closer attention.
Remaining Calm, Neutral and Engaged: People can get emotional in the mediation process, even sophisticated participants. They can escalate. They can grow impatient. They become hyper-critical of unproductive proposals. They express consternation and hostility when the other side fails to match a concession or match a productive proposal. By maintaining our neutrality, remaining calm and confident in the process, and reminding everyone of the progress made to date, mediators are role models for optimism, patience, and rationality.
Conclusion
When parties trust the mediator, have confidence in the process, and value the relationship growing stronger throughout the day, a solid foundation is laid for considering proposals thoughtfully, weighing risks realistically, and finding a solution providing mutual benefits and gain to all. Building a solid relationship with the parties is well worth the effort and will pay dividends in a negotiated resolution.
Sheldon J. Stark offers mediation and arbitration services. He is a member of the National Academy of Distinguished Neutrals, a Distinguished Fellow with the International Academy of Mediators and an Employment Law Panelist for the American Arbitration Association. He is also a member of the Professional Resolution Experts of Michigan (PREMi, http://premiadr.com/).
He is past chair of the council of the Alternative Dispute Resolution Section of the State Bar and former chair of the Skills Action Team.
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