“Multi-tasking” took on a whole new meaning for me the other day when I conducted two mediations simultaneously-that is at the same time! Sounds strange, doesn’t it?
It came about at the last minute. I had one scheduled for the morning but during the previous afternoon, defense counsel telephoned to advise that she had another matter with the same plaintiff’s counsel and asked if I would do the second one at the same time. I thought about it for a while. Two issues came to mind: the logistics, and whether I could do a good job. I emailed a colleague for advice and she advised against it (being a conservative soul). However, I love challenges. I like to mediate “dangerously” as some of my other colleagues would say. So I decided to do the double mediation if I could sort out the logistics. Do I have enough conference rooms? Will I be able to glide from room to room, and will counsel be able to do so, if need be? I spent some time on this issue. After some thought I was able to sort out the logistics in my mind - two separate conference rooms for plaintiff’s counsel so she could speak to each client privately and one conference room for defendant. With both issues resolved in my head- I figured “why not?” If counsel were agreeable and wanted to do it, I should give it a try. So, I said “yes,” albeit with trepidation.
That morning, I came to my office feeling nervous and apprehensive. I wanted everything to go smoothly. I was still trying to figure out how to make the most efficient use of time without keep each plaintiff and the defendant waiting too long.
So…I started. While normally, I might start a mediation with a joint session, I knew using separate sessions throughout these mediations was the only way to do this. I met with one plaintiff and counsel, went through the preliminaries and then learned from her what her case was about. While I went to speak with defense counsel about the first case, plaintiff’s counsel met with her second plaintiff. After meeting with defense counsel, I than met with the second plaintiff and counsel, went through the preliminaries and then learned about her case. As I left the room, I discussed with plaintiff’s counsel the defendant’s response to the first plaintiff’s position in the first case so that she could confer with the first plaintiff while I again conferred with defendant and her counsel on the second case. When I finished conferring with defendant and her counsel, I met with plaintiff’s counsel to discuss both matters. At this point, it seemed appropriate for me to meet with both counsel to discuss both matters and so we did. Luckily, plaintiffs’ and defense counsel knew each other, had many cases together, and based on their relationship were able to meet cordially and discuss both cases in a candid fashion. (I doubt this would have gone as smoothly had opposing counsel been strangers to each other.) This round-robin continued as I went from room to room, trying always to keep neither the plaintiffs nor the defendant waiting too long.
Somehow, we managed to settle one of the cases and to determine that more information gathering was needed before the second matter might be resolved.
As I moved between the plaintiffs, I wondered how each plaintiff felt, knowing that she had only 50% of her counsel’s attention and guidance (as well as my attention) due to the other plaintiff in the other room. No doubt, plaintiff’s counsel felt a bit awkward moving between her two clients. Was something lost in the “process” of mediation? Standard VI in the ABA Model Standards of Conduct for Mediators (September 2005) is entitled “Quality Of The Process” and provides, among other things, that a “mediator shall conduct a mediation…in a manner that promotes…procedural fairness…” To do this, among other caveats to this Standard, “A mediator should agree to mediate only when the mediator is prepared to commit the attention essential to an effective mediation.”
Did I, unwittingly, violate this standard? I hope not. I tried to keep it personal and take time with each plaintiff giving each party as much attention as needed, but, at the same time, I realized I had to keep the “process” moving and do so efficiently! Needless to say, I did an awful lot of walking! I certainly got my exercise - both physically and mentally!
Would I do this again? Probably, but only if asked. It is not a process I would promote, or endorse as it seemed to “cheat” each plaintiff out of the “process” each came to participate in; to wit, mediation. Studies have shown that when we attempt to multi-task, we do each task less well than if we were focusing solely on one of those tasks. Indeed, an April 11, 2011 New York Times blog post reported on a study finding that “multitasking takes a significantly greater toll on the working memory of older people” to the point that they have trouble remembering what they were doing after experiencing a brief interruption. (See Multitasking Takes Toll on Memory, Study Finds by Matt Richtel). As I am an “older” person, this troubles me! And, it is definitely how I felt about my multiple mediations. As much as I tried to guard against it, at the end of the day, I felt that each plaintiff lost something in the “process.”
So, in conclusion, I would suggest that if asked to “multi task” mediations, think long and hard before answering; there are a lot more facets to it than one could ever imagine!