A Conversation on the Challenges of Mediation Practice-Part 2

Continued from Part 1.

Judith Meyer: A mediation is successful when parties have listened to each other and can understand and not just seek to stifle each other’s point of view; when parties understand what is really driving the opposition and what really is at stake; when parties understand why they are really at the table; when issues in the dispute have narrowed and only what truly cannot be resolved other than by an interpretation of law remains; when the parties have learned how to listen to and hear each other so as to solve not just the present problem but future ones that will arise; when the level of anger and hostility in the room abates; when parties enter as combatants and leave as colleagues; when parties save themselves years of angst and frustration and significant financial cost; when what the parties identify as an insoluble problem is then solved; and, of course when the case settles.

Larry Watson: The definition of success in mediation is not necessarily reaching a settlement agreement. In a civil trial context, a successful mediation is one that provides the parties a basis for making an informed and fact-driven choice between the two options available for resolving the matter — adjudicate or reconcile; litigate or settle. As to the adjudication option, the parties should recognize the critical issues in their dispute and the positional debate that will be staged before the adjudicative body to resolve those issues. They should be aware of what each side will be arguing and what data will be presented to support those arguments. They should understand how long the adjudication process will take, how much it will cost, the potential unintended consequences, and the range of possible outcomes. As to the reconciliation option, the parties should understand the interests and concerns that need be accommodated, the best deal that can be reached, and the collateral benefits of reconciliation. Once that data has been developed and understood, the mediation is “successful.” The parties are armed to make an informed decision. What they decide is up to them. More often than not, however, good information on both options tends to support the settlement option.

Kimberlee Kovach: In discussing success, each of you has mentioned the importance of the parties, the decision makers. Yet in most of your cases, you also have lawyer representatives who often focus on the legal aspects of the matter. How do you balance — if you do — the people issues and the merits or legal issues?

Judith Meyer: A mediator toggles constantly between the people issues and the legal merits of a dispute. In mediation, you cannot separate people from the problem. The efficiency and the antiseptic quality of a trial does just that. Only the merits are considered, frequently resulting in blunt judgments that do not serve the parties’ interests. In mediation, with every consideration of a legal claim, a different emotional response may attach. A claim for misrepresentation of product development in the sale of a company attacks the integrity of the company representative who negotiated the sale. He may have been relying on data he believed and is not guilty of the fraudulent intent ascribed to him by the plaintiff. If his perspective can be heard, the plaintiff can move beyond anger into problem-solving mode. And the lawyer advocates do not just spout the law. They have relationships to their clients and to the lawyers on the other side. And not infrequently, these relationships are impediments to resolution. Lawyers, like their clients, have their own agendas and their own “horse in the race.” So the mediator has to deal with the meta-reality of the advocate. It gets complicated.

Larry Watson: The path a mediator must take to guide a party toward an objective evaluation of the merit issues is through the people issues. Recognizing, accepting, and sometimes validating the personal issues involved in a dispute is often the best way to divert their dominance over the issues on the merits of each parties’ position in the dispute. Until the agenda of personal issues has been addressed, until the venting has occurred, it is extremely difficult to focus on the merits of the dispute.

Jeff Krivis: In my experience, in the final analysis, people issues trump merits issues. Here are a few examples that come to mind: a) If you, as mediator, fail to build rapport and trust with a party, they are unlikely to share with you their settlement authority, even if they are concerned with the merits of the case; b) Mediators who insult the intelligence or view of the participants will often shut down a meritsbased discussion; c) If you, as a mediator, connect with the parties on a personal level, they will be more receptive to a principled discussion of the merits. d) A high-profile plaintiff’s attorney who has obtained large verdicts and is not afraid to try just about any case is a wild card in mediations. If the plaintiff has a weak case, the merits can be put into a “market value” category, but the lawyer can do damage.

Kimberlee Kovach: Mediation is an often-complex process indeed, and I know and appreciate the many years of success each of you has had as a mediator. Through that experience, is there any particular innovative or unusual technique that you have found especially effective in what may otherwise be an impasse situation, one that you are willing to share publicly?

Jeff Krivis: Literally books have been written about this question. Here’s my philosophy: I view every case as a drama in which my office is the theater and the parties are the actors. There is no script to keep the narrative going, so we have to make things up as we go along. This is very much like improvisational theater, where the goal is to keep the dialogue moving forward by: 1) making the people on the stage look good; 2) using “yes, and….” techniques; 3) understanding and respecting the “status” (pecking order) and “shifting status” of all participants; 4) remembering that there is a beginning, middle, and end to every drama, and it is your job to make sure the parties experience those moments. With that framework, it is fairly natural to find techniques that address moments where things lock up. Static formulas generally don’t work unless it is a commoditytype case where there are repetitive fact scenarios and predictable outcomes. The improvisational mindset creates dynamic moves that work with the impasse to fit it into the entire case narrative without putting up walls.

Judith Meyer: The only truly unusual technique I have used: threatening to walk out. I threaten to stop working with the parties and leave them to their own devices and pursuit of the litigation path, i.e., telling the parties that they love their dispute enough that they should just embrace it and continue. This has had the effect of creating a huge pause and some reflection, and in the only cases where I have tried it, a request that I continue to mediate.

Larry Watson: Downstream mediation program, a well-known and commonly used technique, is still remarkably successful. When an impasse looms, I try to focus the parties on the primary point or points in dispute that appear to be blocking further progress toward an agreement. Once that central issue has been identified, I shift the focus of discussion to identifying what could be done to shed more light on the source of the potential impasse. What additional information would help change the parties’ landscape and serve as an appropriate basis for a re-evaluation of their respective positions? What is the quickest, easiest, and most cost-effective way to get that information? Under the umbrella of a confidential and privileged continued mediation process, we then devise a downstream program to develop that data and adjourn to complete that task. Once the information is developed, we reconvene and continue discussions. In short, don’t stop talking. Just shift the conversation to something else.

Kimberlee Kovach: In reflecting on your career, what is currently (or what do you perceive in the near future to be) the biggest challenge in your practice?

Jeff Krivis: Staying fresh. Finding opportunities to use the skills I have learned in a philanthropic way. Showing appreciation to the many people who have had confidence in me without taking them for granted.

Larry Watson: Dealing with the growing body of “institutional consumers” of mediation services, i.e., insurance carriers, corporate risk managers, claims adjusters, et cetera, and their effect on mediation presents a significant challenge to any civil trial mediator. The drive to achieve claims management cost savings by this segment of the dispute resolution community filters into mediation programs in a number of ways — not many of them good. For one thing, the business is becoming depersonalized. The constantly shifting population of claims managers, adjusters, defense counsel, and corporate risk management personnel brought on by competitive pricing makes building personal relationships difficult, if not impossible. Pressures are being exerted to shorten mediation sessions and eliminate critical components of the process. Lawyers who are pushed to hold down costs are appearing at mediations ill-prepared to participate in a productive manner. Perhaps most egregiously, the representatives of institutional consumers are appearing at mediations with little to no authority to reach reconciliation. In far too many instances, the mediation process is being used to discover information about the claim, to forestall final reckoning, and to gain litigation advantage. The institutional consumers have legitimate interests in cost-effectively and efficiently reaching the critical decision point for resolving civil trial claims. We must, however, develop ways of accommodating those interests without sacrificing the core values of the mediation process.

Judith Meyer: Some of the biggest challenges for me in the future are the same as the biggest challenges in the past: • convincing litigating parties and their lawyers to take charge and control of the dispute at hand rather than letting a pretrial court order determine the pace, fate, and outcome of the dispute; • challenging parties and lawyers to prepare for and respect the process; and, • making mediation a credentialed profession rather than a cottage industry. A challenge I think about now with greater frequency and urgency: how to conclude a career having made a difference.

Kimberlee Kovach: I certainly am confident that all three of you have made a wonderful difference in the practice of mediation, and I thank you for sharing your collective insight and experience. ■