Imagine yourself in a small airplane—not “small” as in a jet with 50 people, but small as in a private airplane with two seats, front and back, like a motorcycle with wings, just you and an instructor. Now imagine you lower the nose about 20 degrees below the horizon and gain speed. When you get enough, you pull back on the stick and point the nose straight up—then you cut the power and close your eyes until the instructor says “go!” You then immediately open your eyes and find you are looking at the sky and you can feel that you are falling sideways, backwards, and to the right. After a peremptory expletive or two, what do you do?! According to the book, its “simple:” assess, react, and regain control, in that order, and as quickly as possible. Simple as it may be in the book, doing it while falling out of the sky is another thing. This article discusses how to apply these steps to rescue a mediation that is “falling out of the sky.”

If you are still reading, you might be saying, “Not only does that sound stupid unless you want to die, but how can it possibly apply to mediation? I mean, how often does a mediator have to apply the laws of aerodynamics?” Admittedly, not often unless mediating cases where the pilot does in fact fail to regain control. However, this article posits these steps to recover an airplane apply to recover a mediation that has gotten out of control. One cannot plan every detail of how a mediation will proceed, in part because there are dynamic human forces at the center of this business, and people will often do unexpected things. This can result in the mediator finding himself or herself in an awkward situation, that feels to him or her very much like falling sideways out of control, on a sure course to crashing and burning if something is not done to change course.

The sections below break out the steps to recover an airplane from any orientation in the air and applies those steps to recovering a mediation that has gone (or is going) awry.

Assess
The first thing to do to recover your airplane to a flying position comfortable for passengers, (clean side up, dirty side down) is to assess how it is oriented now and what direction(s) it is going and how fast. If it is going too slow, you need to lower the nose and add power to gain airspeed (airplanes don’t fly if there isn’t enough speed). If it is going too fast, you need to raise the nose and reduce power. If it is upside down, you need to roll it right side up. But a roll cannot be performed until after you reach an appropriate airspeed. And so it goes, and there is an order. Trying to do one thing before another will result in a failure to recover and a crash.

Similarly, in mediation, the first step when something unexpected occurs is to assess what it means for the mediation. Where does this development point the mediation process? How are the parties relating to it? Whether the development is leading the parties closer together or farther apart is tremendously important, and should be a central consideration before the mediator decides how to respond to the unexpected. Like in the airplane, the first step is to simply assess how this has influenced the process.

React
Once it is determined what the airplane is doing, the next step is to react to its orientation, direction, and speed. It should be noted you cannot force it to do what you want without considering what it is doing and incorporating those forces.

In mediation, the parties certainly have a mind of their own, and often a direction or goal of their own. If the mediator’s response to the unexpected ignores this, it will not likely be effective because the parties will resist it. The mediator, like the pilot, must take first steps first, and be confident that after step one is taken it will be possible to take step two.

Regain Control
By applying these steps, the pilot will always be able to recover if he or she correctly assessed and responded, and there was sufficient time to recover. No matter how far off the ground such activity starts, the airplane will fall to the ground if not controlled—the higher the more time to recover, but there is a do or die time period.

Applying This to Real Life
While no one is likely to die if the mediator cannot recover, the mediation and/or the potential to settle can very well die. A perfect example involves a car-accident case where the defendant sued the plaintiff-driver, and the plaintiff-driver’s insurance then retained defense counsel. This put the plaintiff lawyer (on a contingency) in the mediation, the defendant’s insurance company, and the plaintiff-driver’s defense counsel to defend against the cross-complaint.

This mediation was conducted in the confines of the Court sponsored Mediation Clinic for Limited Jurisdiction Courts, and there was a binding two-hour limit to either settle or not—a clear cut do or die time. By the second caucus, the mediator realized the third lawyer in the room, the plaintiff’s defense lawyer against the cross-complainant, was hindering the negotiations between the plaintiff and defendant lawyers. He insisted on talking about how stupid the case was, and how he was not paying anything. But no one in the room was asking him to pay anything. At this point, the first step was accomplished, and the mediator recognized this individual was setting the mediation on a crash-course.

The next step, react, did not occur until the third caucus, at which time the mediator pulled the plaintiff lawyer out of the mediation caucus room to speak to him alone. To the mediator’s relief, the Plaintiff lawyer agreed this third party was hindering the process, and the Plaintiff lawyer made clear this should be a straightforward negotiation.

Is There Time To Recover?
At this point, the mediator felt he had regained control of the mediation, and would be able to guide the real parties, plaintiff and defendant, to a settlement, which would result in the third party being released as well. The only question was, is there time? By the time the mediator regained control of the mediation, and realigned the parties to a path toward settlement, an hour and fifty minutes had passed. The parties had made some progress, but had a long way left to go before they would reach a common number. Though the mediator pushed as much as possible in these 10 minutes, and both parties were still willing to compromise, the draconian court schedule prevented a full recovery and resolution—the mediator crashed and burned.

What Went Wrong?
Nearly every airplane crash is thoroughly investigated by the National Transportation Safety Board. Interestingly, most crashes are attributed to “pilot error” (running out of fuel is perhaps the leading cause…) Though it might be interesting to see an assessment of failed mediations like there are for airplane crashes, there is no such database known to this writer. Nevertheless, in this case, the reason the case did not resolve at mediation (it did resolve later) was the mediator’s failure to assess the problem and correct it in sufficient time to save the mediation.

Lesson Learned?
When things start going sideways on the mediator, it is time to assess, react, and regain control to keep the clean side up, the dirty side down, and the passengers comfortable.

by Jasper Ozbirn

Jasper L. Ozbirn received a LL.M. in Dispute Resolution with an Emphasis in Mediation from the Straus Institute, Pepperdine University School of Law in May of 2011. He is presently an associate attorney with Citron & Citron in Santa Monica, California.