When I was a young associate at a law firm, one of my mentors encouraged me to start looking for opportunities to teach at continuing legal education seminars. When I asked him whether he thought I had the requisite expertise to instruct others on the law, he wisely told me that one of the best ways to become truly expert in something is to prepare to teach it to others.
As I began to prepare the syllabus for a course on mediation that I am teaching in the spring at a local law school, I remembered my colleague’s advice and realized again how accurate it is as I looked at the list of materials I want to reread or examine before I enter the classroom in January. The resources available today are staggering. My latest Amazon search for “mediation” yielded over 17,000 results, though Amazon also has a problem separating mediation from meditation. (For more on that, see my July 2016 blog post, Mediation? Do You Mean Meditation?).
After sifting through the list of materials to which I want to expose my students, I realized that perhaps I needed to get away from theory and head back into the realm of the practical. After all, what do second and third year law students need to learn about mediation, and how can they learn it most effectively? How will they be using mediation in their practices? How can I help them transfer knowledge from the classroom to the conference room? How can I assist them in seeing the benefits that dispute resolution techniques can bring to any situation, whether emergent or full-blown?
I have settled on three primary questions I would like my students to be able to answer at the end of the semester. First, what does mediation look like? Second, how do I prepare for mediation? Finally, how do I help the parties in dispute get the most of the mediation experience. If you have participated in more than one mediation, you know that the answers to these questions vary from situation to situation, but that common themes and techniques help to answer each of these questions in almost every situation.
If you had to answer each of those questions, what would you say? If you were asked what themes and techniques have been common to your mediations, what would be your response? I’d love to hear from you as I continue to prepare for the coming semester.
A few weeks ago, I attended MCLE’s 8th Annual ADR and the Law Conference. Daniel Shapiro of Harvard’s Program on Negotiation delivered the keynote address, and shared with us some of the research and concepts underlying his new book, Negotiating the Nonnegotiable. After walking us through several theories of dispute resolution, he moved on to describe his latest theory regarding what prohibits people from reaching agreement.
In sum, and with apologies to Dr. Shapiro for oversimplifying his work, he theorizes that any time a dispute threatens one’s identity, the situation becomes highly charged and almost impossible to resolve without taking several steps back to unpack the emotions and identity issues surrounding the dispute. While I have yet to finish his book, the concepts he discussed with us made a great deal of sense and reflect my own experiences in negotiations both as an attorney and as a neutral.
One of the very first cases I handled as an attorney involved an employee who had been asked to leave a job because the employer thought s/he was no longer capable of performing its essential functions. This employee had a serious, chronically debilitating medical condition and the employer had provided many accommodations to over the duration of the employee’s illness. Ultimately, the employer determined that it would be unsafe for the employee and for others to allow the employee to continue to work. S/he disagreed, and litigation ensued.
What became clear very quickly is that the employee’s identity and self-worth depended upon the ability to remain in the workforce. Moreover, the stress of the litigation impacted both the employee and the employee’s former co-workers, with whom s/he had been quite close. Both sides preferred a creative solution over protracted litigation. With the help of an extremely skilled mediator, the parties reached an agreement sensitive to the identity needs of the employee that also address the employer’s legitimate safety concerns. Negotiating the actual deal took only a few hours; addressing the employee’s perception that s/he would no longer be of value to society if s/he could no longer work took far more time. Once the employee let go of this perception, in part aided by some very creative future employment suggestions from the employer, the employee and employer reached terms quickly.
The moral of the story? Whenever possible, take the time to find out who really is on each side of the table. That knowledge may be far more important than the amount of money available to settle the matter.
Last month, this blog examined how often mediation is misunderstood by the public. This month, I’d like to take a brief look at how we can help the public understand what mediation is and how it can be of benefit to them. As you may know, the first cases I mediated were as a volunteer in small claims court. Many of the participants in those mediations wondered why they hadn’t been offered the option of mediation before filing their lawsuits and scheduling a hearing date.
Unfortunately, at least here in Massachusetts, budget cuts to the state court system have reduced the opportunities available to the public through ADR. Even in the federal court, mediations now are conducted almost exclusively by senior status judges or magistrate judges, whereas ten years ago, there was a robust panel of mediators available to litigants. Reduced budgets mean fewer opportunities to do more than keep the wheels of justice turning, however slowly. Exploring new alternatives to the traditional way of doing things takes time and resources, neither of which are available to court administrators.
So if earlier and more frequent opportunities for alternative dispute resolution are going to be difficult to come by through the court system, where can inroads be made to divert disputes that are prime candidates for mediation from the court system to qualified mediators? Two ideas spring to mind.
First, there are very few businesses that never encounter disputes that end up in litigation. Angry customers, shoddy suppliers, and disgruntled employees are just a few of the headaches faced by small businesses on a routine basis. Why not look to educate those businesses directly about what mediation is, how it is available to them, and how it can benefit their bottom lines? A two hour mediation with a customer who disputes a bill and has failed to pay for services rendered because they think the bill is excessive could save both parties time and money. Similarly, a mediation with a supplier whose services a business wishes to terminate could result in a far more amicable, and less costly, exit. Finally, a facilitation or mediation with an employee could resurrect a working relationship and could forestall costly litigation (multiple damages and attorney fees are commonly available in discrimination and wage and hour cases).
Second, most attorneys do not think of using mediation until after a lawsuit has been filed and pending for some time. One thing that I always tell my lawyer colleagues is not to wait to call me until after the lawsuit has been pending for months or even years. In many cases, if they are not able to resolve a matter prior to suit through direct negotiations, calling me early can save their clients time and money, and happy clients are recurrent clients who pass along the name of their favorite attorney to all who ask.
Do you have any other ideas as to how to bring mediation to the forefront of people’s minds when conflict arises? If so, please comment below. I’d love to hear from you.
When I began letting people know that I was opening up my own alternative dispute resolution practice, I had several people ask me when and how I made the decision to go into meditation. I quickly explained that I was planning to lead mediations, not meditations (at least not in public)! Nonetheless, those questions got me thinking. How many members of the general public really understand what mediation is and how it can help people resolve conflict without resort to the courts?
My first experience with mediation was as a young associate practicing law for a well-established, somewhat conservative medium sized firm. Few lawyers within the firm had any significance experience with or real understanding of mediation (one partner with whom I had a mediation early on in my career couldn’t decide how much of the case file we should bring!), but the partner with whom I was working on an employment matter thought it would be useful in our case because both sides of the matter had significant legal and factual strengths and weaknesses. Private negotiations were going nowhere because there were multiple defendants who could agree on very little, and we needed something to break the impasse if we were going to obtain a reasonable, and secure, resolution to the matter for a client who had a lot to lose if a court ruled against us.
Luckily, the mediator the parties agreed to use was none other than David Hoffman, who literally has written the book in Massachusetts on mediation. David mediated the matter over the course of a day, helping the parties to reach a resolution that addressed the needs and concerns of all parties. From that day forward, I was hooked on the concept of mediation as means to resolve clients’ disputes.
Twenty plus years, after having participated as an advocate or neutral in hundreds more mediations, I am convinced that few people outside of the legal profession understand what mediation is or what it can do to help resolve disputes in day to day life. As part of my mediation training, I did a practicum with the Community Dispute Settlement Center co-mediating cases in small claims courts. The only participants to the mediations I conducted during that practicum and in my subsequent work as a volunteer mediator with CDSC who have ever heard of mediation are the few attorneys appearing in that court, or the “frequent fliers” who appear there regularly to advocate for themselves or their businesses.
Part of my mediation process involves an explanation of what mediation is at the inception of the session. At the end of the session, regardless of whether the matter has been resolved or not, I like to ask the participants about their impressions of the process. Many with whom I have spoken have indicated that they wished mediation had been made available to them before litigation had commenced. The question becomes, how do we as neutrals educate the public about options to traditional litigation? More on that in future posts.