With a clear understanding and consent of all parties, a mediation that pursues a resolution that can be considered a win by all sides is possible, practical and achieveable. Yet, many, perhaps most, mediations allow little regard to the fundamental interests of the parties.
Neglecting “win-win” as a goal for dispute resolution demeans dispute resolution alternatives, particularly mediation, adversely affecting individual mediators and eventually, the mediation process itself.
A mediator with years of experience once told me, “A good settlement is one in which both sides are unhappy.” That could be considered as merely an unfortunate way of saying that a good settlement is one in which all sides have given up on what they sought to gain. But it also could imply a suggestion that a good mediator should pressure the parties into accepting the mediator’s own judgment (in possible violation of the applicable state statute.)
As an advocate I at times have had to aid clients, not always successfully, in resisting a mediator’s directions. Before holding an initial joint session, a mediator met separately with my client and the opposing party, then declared an impasse without further proceedings. He said the positions were too far apart to warrant mediation. (Opposing counsel and I insisted on proceeding and a settlement was reached close to midnight.) Another mediator said at the initial session that long experience made it possible for him to prescribe the ideal solution without taking the time for discussions and that he had to end the mediation by 2:00 p.m. In another case, after reluctantly agreeing to a settlement, my client did not accept the agreed payment until after the funds had been deposited with the court for more than three years.
I learned as much about mediation as an advocate as I did in hundreds of training sessions in conferences. Now retired from litigation and dedicated to resolving disputes, I am committed to emphasizing the circumstances and desires of the parties as much as the efforts to reach what ideally should be a cordial, if not amicable, settlement.
The key, I have determined, is taking the time to prepare before the day of the mediation, and working to persuade and assist all counsel to do their own preparation.
There can be a dispute based solely on a monetary amount, but ample preparation can disclose alternatives based on other interests of the parties, which can be at least as important. A mediation based solely on having one side agree to an amount and the other to accept or reject that amount diminishes the mediator’s role to that of a mere messenger. The parties might as well have gone to an online service that allows the parties to make undisclosed, successive offers until they reach an agreed amount.
An article published by the American Bar Association, “Preparing for a Successful Settlement Agreement,” (available online) noted that lawyers would not consider showing up unprepared for trial. Yet, a survey found that no litigators said they would spend more than one or two hours preparing for a mediation. The article offers tips for lawyers and their clients to prepare.
Look for future suggestions in this space on how to prepare and perhaps how courts can assist parties and their attorneys to mediate disputes already in litigation.
—David T. López