Tuesday, December 31, 2013

Closing the Deal in Mediation: How do you Speed the Process?

As another year has seemingly flown by, I close this year's blog with a question about rushing through the process of negotiation.  After reading the briefs, and 10 years of experience as a mediator,  I am sometimes tempted to predict the outcome of the negotiation and once the discussions get "on track"--would like to get to 6:00 at about 4:00 P.M.  This is, in my opinion, always a mistake! 

Just as childhood or work experience, the trying moments in life pass excruciatingly slowly, yet the years fly swiftly by.  I read an editorial in the New York Times last weekend about a man who worked in a prison where the prisoner wanted to change the clock to mark the months, rather than the minutes that he had left to remain in prison.  Minutes and even hours, were immaterial to him.  Only years matter when he was serving time behind bars.

People in conflict usually come to a mediation after months or years equally imprisoned by their anger, frustration, griefs and fears.  In a single day, we mediators hope to guide them through the ordeal and set them free.  Clients and their lawyers, on the other hand, need to vent and be heard.  Both client and lawyer need a chance to fully articulate their well-considered opinion before compromise can be achieved. Skipping over the facts towards the march to an inevitable negotiation is an error for the overly eager! 

I wish you all a happy and successful New Year and I wish for each of us to have the wisdom and grace to slow down, if only for a moment, before another year has passed.

Friday, December 20, 2013

How Does a Mediator Remain a Beacon of Peace to Conflicting Parties?

      "Tis the season"...to think about peace on earth and good will towards men (and women).  As a professional mediator, I am keenly aware of the conflict that arises between people every day.  I am invited into the lives and struggles of strangers to gently yet effectively intervene with some dosage of humanity, kindness, understanding and empathy.  This I do with equanimity, diplomacy and purpose.  I am asked to draw upon my  20 + years of legal experience and my 10 + years developing skills as a mediator, to assist parties in reaching a satisfactory solution to their suffering in a single day--usually by the transfer of money, and often also based upon an offering of some understanding by a neutral third party as to what lead them into the conflict in the first place.  This is harder than it seems and often results in an exhausted and depleted mediator by day's end.

     What are some strategies that you have developed to keep you from being drawn into the drama that gives rise to the litigation and unfolds throughout a mediation hearing?  How do you balance empathy and understanding with clarity to be a beacon of light forward? Are readers that are lawyers as genuinely passionate about their client's causes as they appear? How do you let it go after the settlement is achieved?

     Next week, I will be taking the week off from blogging and instead spending Christmas aboard our sailboat in the Pacific Ocean (we'll be in the nearby harbors at Long Beach and Newport Beach--enjoying family, lights, and letting go of the stress of the year).  I hope that there I will find some guidance, take a few much-needed days off, and enjoy the peace, light and clarity that I wish for all of you in the coming Year.  Have a wonderful holiday week!

Friday, December 13, 2013

Do Secrets Compromise the Mediator's Neutrality?

   Occasionally, I get stuck in a corner where I know that the Defendant in a dispute would pay more than the Plaintiff's "bottom line".  Of course, this is revealed to me in confidence, and of course, I maintain that confidence all day long--even after the case settles for something less than the Defense was willing to pay.  Still I am a little haunted by the collision between my duty of confidentiality, which in this instance is crystal clear, and my duty of neutrality.  By NOT revealing or even hinting to the Plaintiff and his counsel that the Defense would pay, hypothetically "up to $75,000" at any time before the case settles at $55,000, am I favoring the happy Defense counsel and his client? Am I maintaining my neutrality or do I have a duty to hint at the possibility of a better settlement to the Plaintiff even if he is quick to reduce his demand to $55,000?  My hypothetical assumes that Plaintiff is satisfied with the settlement at $55,000 for a variety of reasons which may include Plaintiff's sordid past history, his lawyer's incompetence or failure to comply with discovery deadlines or his inability to finance future litigation.  As in every settlement, the parties are both satisfied with the outcome of the mediation, but a mediator with a conscience is left wondering:  does my duty of confidentiality compromise my duty of neutrality?  I'd love to have your thoughts, fellow mediators as this one is a big SECRET!

Friday, December 6, 2013

The Private Meeting Between Clients: Mediating Dangerously

      In it's purest sense, a mediation is supposed to be a chance for direct confrontation and communication between the principals engaged in the dispute.  Far too often, in the age of litigated cases and commercial mediation, this step is avoided or eliminated at all costs.  Still, whenever there has been a strong and positive pre-existing relationship, such as employment, family or even marriage, it's great if you can orchestrate a private meeting between the principals early on in the mediation.
     This week, I took that risk and had the Human Resources manager meet privately with the terminated long-term employee to discuss the reasons for her decision, her regrets and her thoughts about future potential alternative employment.  At the same time, the employee had her chance to rage at the H.R. manager, express her sadness for being let go so abruptly, her frustration in finding alternative employment and her profound sense of loss after she was fired.  The meeting ended with tears and a hug.
     The mediation was not over, but it was only after that watershed meeting that the parties could productively and collaboratively work together to find a way out of the lawsuit.  It is mediating dangerously, since neither the mediator nor either sides lawyer was present to orchestrate or script the meeting and each of us took the considerable risk of allowing things to blow up instead of over.  But in the end, when those private meetings result in tears, hugs and ultimately settled cases, it is oh, so rewarding to take such a risk.