Kimberlee Kovach: In the last 20 or so years, we have seen many changes and modifications to the practice of mediation. These include, for example, trends such as mediators using highly evaluative approaches, joint sessions falling out of favor, clients becoming harder to find, and increasing use of MedArb. Many have noted that this has been, in large part, the result of market demands. My question for you is: To what extent should — or does — the market (which I define as as essentially attorney representatives) control the practice of mediation?
Jeff Krivis: To answer the question, I think it is helpful to define the “market” where these changes and modifications have occurred and how attorneys play a critical role in its definition. The market that drives my practice is the civil litigated case. It is highly competitive, based on the concept of give and take. That concept means that limited financial resources are negotiated and traded back and forth until a deal is done. Non-monetary resources are also traded, but that is the exception rather than the rule. This market succeeds about 97 percent of the time unless a case is resolved through an adjudicatory procedure like trial. Litigators, as gatekeepers to the adversarial system, set this market in motion. These litigators have legitimate economic interests, both personally and on behalf of their clients. Mediation within this marketplace often results in a zero-sum exchange where each participant’s gain or loss is balanced by a gain or loss to the other side. It’s that simple.
Larry Watson: In the context of civil trial mediations, litigation lawyers are principal players and clearly influence the way mediations are conducted. Importantly, trial lawyers also play a principal role in the selection and compensation of mediators; mediation practitioners cannot ignore their process preferences. I am hesitant, however, to accept the notion that the market shaping mediation services should be solely defined by attorney participants. Attorneys often have an agenda of their own which is driven by their own goals and needs — often in directions that may not focus on benefits to the overall process or other participants. Mediation is predicated upon self-determination by the actual parties to the dispute, which includes selection of mediation processes or practice techniques. Ideally, the parties themselves should heavily influence the “market” that shapes mediation services.
Judith Meyer: Lawyer input, consultation and collaboration, is a wise thing. The mediator needs to know an advocate’s preferences and state of mind. So the answer is that in some places, the market runs the practice of mediation. But for the skilled mediator who not only wants to help parties settle cases but who values her professional skills and wishes to educate advocates and their parties in best practices of negotiation and dispute resolution, the market cannot dictate practice. That mediator not only helps parties to resolve disputes; she models forms of communication that she hopes the parties will adopt in future problem-solving. That is not to say that counsel should not consult with the mediator to choose a model of negotiation and problem-solving that may or may not be iteratively facilitative, evaluative, or transformative or a form of mediation that toggles between joint and private caucuses. The mediator is a negotiation coach. But like any coach, she encourages the players in strategies most likely to succeed. She, unlike the crowd, does not root for injuries.
Kimberlee Kovach: OK. How do we ideally provide a process that achieves “success?” Should there be some parameters of the process, what we might consider “ground rules” for mediation?
Larry Watson: Trial lawyers and the courts properly define and control the litigation process, which have very clearly defined rules. In mediation, however, there is a broader base of players, including the mediators and the parties themselves, who have a stake in defining the process. Some ground rules that will help assure an effective mediation include show up with authority; participate in good faith; respect fundamental self-determination; and let the process unfold as it was intended to occur — a confidential, informed exploration and development of dispute resolution options.
Judith Meyer: In the most mediation-developed regions — California comes to mind — the market appears to control mediation practices. In less developed regions — Pennsylvania comes to mind — not so much. At that market-driven extreme, mediation imitates the old-fashioned judge settlement conference before trial — “Okay, counsel, what are your numbers, and can you settle this thing?” — and falls into laughable disrepute. It makes hacks of mediators. Why should parties pay to get beat up? Courts do it for free. There are absolute “ground rules” in mediation. These should include the existence of a respectful dialogue with parties hearing (not just listening) to each other; advocates opining on the shadow the law casts on the dispute; the testing of risk tolerances; and the brainstorming of impossible and possible solutions. Commitment to preparation, civility, and perseverance is required.
Jeff Krivis: In a more theoretical sense, the early marketplace was built on an underlying system in which inherently competitive trading didn’t always
blend with the cooperative approaches preferred by the early adopters. The economic drive that directs a litigator to get the best possible deal for their client hit head-on with the mediation movement that was concerned with harmony, cooperation, and of course, confidentiality. The real question was whether lawyers and mediators could adapt the valuable parts of the mediation process to fit the needs of the litigated dispute at the bargaining table while balancing the importance of case closure. Digging even deeper, I would say that mediation practice is designed to be more like an inquisitive system where the third-party referee is involved in investigating information from the case in order to come to a fair outcome. And the referee mediator must then assure some level of fair play.
Kimberlee Kovach: Going back for a minute to the process changes I initially mentioned, I think, Larry, you have observed that with regard to Med-Arb it is the clients rather than the lawyers who seem to request this process. Could you elaborate?
Larry Watson: Well, I don’t think the advent of “Med-Arb” (essentially, “let the mediator decide if we cannot”) is entirely attorney-driven. I agree some current trends in mediation practice — to seek evaluative mediator approaches, to eliminate opening sessions, to minimize client participation, and to dance around authority requirements — are largely attorney-driven. Further, I think they may well be driven by items on the trial lawyer’s agenda that may not always be in the best interests of the client or the process. In my experience, however, Med-Arb has been driven by the clients. Both institutional litigation clients and one-time users are attracted to the aspect of getting closure as quickly and as inexpensively as possible. I find the clients saying, “If we can’t agree, then let’s let the mediator end this thing” more than the attorneys.
Kimberlee Kovach: Jeff and Judy, your thoughts and observations on the use of Med-Arb?
Jeff Krivis: This is a solution looking for a problem. In my experience, the use of Med-Arb is very limited. While it is a tool in the arsenal, its value lies less in its use and more in the dialogue between the parties about trying it if settlement isn’t possible. The mere discussion of such an alternative focuses the parties on rethinking their goals and leads to further settlement dialogue.
Judith Meyer: Med-Arb brings closure, and I agree with Larry that it is desired by both counsel and clients. In a mediation the mediator knows enough about the risks the parties face and the “shadow of the law” to render a fair arbitral decision. I mediated a rape case — the rape of an 11-year-old girl by her swim coach where the girl blamed herself — which would have further devastated the girl had the case gone to trial. It had to settle either in mediation or by letting the mediator decide.
Kimberlee Kovach: Larry, any final thoughts on the topic of Med-Arb?
Larry Watson: As a general proposition, a properly timed discussion of any alternate to reaching a settlement agreement (Med-Arb; special master; high-low agreements, et cetera) will often lead the parties back to the merits of a settlement agreement. I suspect the actual use of Med-Arb is a regional thing — it is growing here in Florida. We’ve adopted ethical standards to deal with mediators who become adjudicators.
Kimberlee Kovach: Even with those changes or modifications to the process, we continue to hear a great deal about all of the benefits of mediation, such as privacy and saving time and money as well as maintaining relationships. I think implicit in such statements is an assumption of settlement or resolution of the case. Yet I believe that mediation is beneficial even in those cases that don’t completely settle or resolve. What do you consider a “successful” mediation?
Jeff Krivis: My definition of success has shifted over the years. Clearly making the deal is the gold card in our business, but not necessarily what the clients are evaluating you on. In cases involving multiple parties and moving parts, it is critical that they all feel like the mediator has paid attention to them and concurrently moved the ball forward toward settlement. That doesn’t mean settle at all costs. Recognizing the internal constraints, particularly with institutional clients, can lead to a successful mediation even if the case is not settled at the mediation. This is where serving as a consultant more than a mediator adds value and earns the mediator stripes with the audience. Dealing in commercial trade requires an understanding of the economic components that go into decision-making. By forcing the issue, it is possible to push a client in the wrong direction.That client may want to settle but has a constituent at the office that needs to weigh in. My goal is to provide leadership skills for all sides so that the case is navigated into a direction where everyone is paddling the same way.