“In comic strips, the person on the left always speaks first.”.
Despite the flexibility of the process, mediations mostly follow the same formula:
1. Everyone convenes in one room. The mediator explains her role, the process, and the ground rules. She might offer preliminary observations about the conflict and ask the lawyers for new information or an update on settlement discussions.
2. One part makes a speech, emphasizing the strengths of his case and perhaps acknowledging and minimizing the weaknesses.
3. The other party makes a speech, expressing great disagreement with the 1 st Party, at the most offering a willingness to negotiate and a desire to settle.
4. Parties may be given a chance to “vent” by talking about her damages and losses.
Lawyers listen proudly, imaging how well their presentation s will sound in front of the jury. The mediator nods sympathetically and asks for details.
5. Before conflict erupts or cross-talk ensues, the mediator separates the parties into different rooms, where she delves more deeply into each side’s views and begins to explore offers and demands. She shuttles back and forth between the rooms, exchanging information. This continues until settlement is reached or until one or more parties decide to go home.
6. The parties may meet a second time in joint session, to confirm the settlement or, if none was reached, to discuss a plan for going forward—setting a further mediation, perhaps, or conducting expert depositions. In most cases, this formula of “shuttle diplomacy” works. The mediator has complete control over the information conveyed. She can shape the messages from each camp in a way most useful for the process.
Participants appreciate having solo time with the mediator so they can speak candidly about their views, needs, weaknesses, and desired outcomes. If, during the process of separate caucuses, angers flare, the ever-calm and neutral mediator can receive that emotion without an adverse effect on negotiations.
If one party routinely rejects all suggestions from the other side, separate caucuses permit the mediator to offer these same suggestions, and the receiving party may welcome them from a neutral. It can even happen that the mediator discovers the most felicitous of all problems: that one of the Parties best offer is greater than the Other lowest demand—a “problem” to be wished for more often. Experience shows that shuttle diplomacy is comfortable for the parties, their lawyers, and the mediator. It is a winning formula, so we use it.
Still, before beginning your next mediation, you might think about alternatives and whether, in the context of your particular case, another formula might work better.
If you suspect one or more parties may poison the joint session with an antagonistic attitude or harsh words, you may want to skip the joint session altogether and begin with private sessions or with a meeting of the lawyers only. One of the benefits of speaking privately with the lawyers before the negotiations begin is learning of potential perils in advance. If Party’s 1 presentation is alienating his adversaries, cut it short. In private session, you can listen long and attentively.
Or consider this variation: If the joint session is working, stay there. Contrary to popular notion, joint sessions can be supremely effective in divorce, probate, and business disputes—cases in which the parties have a great deal of both emotion and experience in resolving their conflicts, especially where the parties will continue to deal with one another after this round of negotiations ends.
It will feel nerve-wracking and uncomfortable to keep all the players in one room, and the physical proximity alone will set teeth on edge. Yet the joint session may be the exact medicine needed to settle the case. The parties in highly emotional cases often ache for some type of peaceful resolution; divorcing couples, for example, know that they need to settle their case, no matter how angry or how wronged they feel. They are highly motivated to put the painful and expensive litigation behind them. In fact, separate sessions in highly emotional cases can make things worse because the excluded party will agonize over what is being said about him when his adversary has the mediator’s ear. In joint-session mediations, the neutral must ensure that communications are respectful, that outbursts are minimized, and that focus on the issue is maintained. The mediator might explain the value of working together toward a common goal: it is better for the children, for example, or every dollar spent litigating reduces the fund available for distribution to the parties. The mediator may also wish to explain why an adversarial presentation may delay or defeat resolution—especially in a dispute where there is a limited pot of money, such as in a divorce or probate. Ask the lawyers to listen sympathetically and to manage their client’s interruptions and eye-rolls. Explain to the Party that she is, after all, asking for money and that she should show understanding and respect.
Finally, the mediator must be willing to trust the parties’ ability to settle the case, which means giving up some control of the process and letting the resolution unfold in a less scripted fashion. This is difficult for those of us who are used to controlling the proceedings. For mediators who are willing to try it, rich outcomes may be achieved in joint sessions. Separated spouses may share tears; estranged relatives may offer forgiveness; former business partners may shake hands.
So when the usual format is not working, have the courage to try something different. Switch the setup and see whether that reinvigorates negotiations.
Practice:
1. What problems might you anticipate in joint sessions? What steps might you take to minimize or avoid these problems? 2. Is it hard for you to trust in the parties’ ability to settle their case? Why do you think this might be? 3. What ground rules might you use in mediating a joint-session probate case, where all the parties are related, and all are fighting over the same pot of money?