The importance of mediation as part of the litigation process

Jon P. Getz
BridgeTower Media Newswires

Our profession continues to work hard and do our best to resolve the legal issues and problems for our clients during “interesting” times. The understandable delays in moving cases forward have caused concern for many attorneys trying to help clients resolve disputes efficiently and effectively.

One important and often effective tool attorneys may wish to discuss with clients when working toward dispute resolution is mediation.

Mediation is an effective tool in making progress toward solving disputes for clients with a goal of reducing costs and letting parties have an opportunity to speak in a candid manner. I have had the opportunity to use this tool a bit more in 2020 and have the privilege of acting as mediator in a number of matters. I suggest that mediation can be a cost-effective and efficient means of resolving a dispute. There have been some great recent articles from colleagues on this topic. This includes how we can prepare for a mediation via video.

This article is meant to address the process from the mediator’s perspective as we all try to work our important matters for our client while not forgetting that mediation may not be for every case. Now that I have a number of mediations completed as the “neutral,” I have found the importance of “trusting the process” and hope the tips below are helpful to parties and mediators alike.

Although every conflict and every mediation process will be slightly different, there are a number of steps which you will need to consider in every case, and points to take into account.

Preparation

I find it important to lay out the “ground rules” for the mediation process. Usually some basic rules of communication and confidentiality will be essential, but there may also be others pertinent to that situation. For example, you might want to set out that only one person talks at a time, and while someone is talking, the others listen in silence, that there is to be no verbal abuse at any time, and that all that happens remains confidential unless both parties agree to speak about it outside mediation. You may also wish to set out the mediator’s role: to be impartial and help the parties to reach their solution, but also to protect the parties from each other if necessary.

You should also consider whether you should have separate meetings with each party to develop a better understanding of the issues before mediating a joint meeting.

Reconstructing and  understanding the conflict

Your task at this stage is to listen to the participants’ stories, whether together or separately, and clarify what they want to achieve from the process. If you are meeting both participants together, it is helpful if you can summarize the main points of conflict in a neutral way that both can agree upon, and propose an agenda for the discussion: an order in which issues should be discussed. It can also be helpful at this stage to name the emotions that participants are feeling, to show that they have been recognized and understood.

Defining Points of  agreement and dispute

During this stage, your role is to help the participants to move toward a position where they start to understand each other’s point of view, and can then begin to resolve a shared problem. One way to do this is to think of it as moving from a focus on the past to one on the future. It can also be helpful to use paraphrasing and summary in neutral terms to help the participants identify areas of agreement, and to check understanding. It’s extremely powerful to reflect feelings back to the participants, as it shows both that they have been heard.

Don’t be afraid to suggest a break for coffee or a walk outside, (or a video break) or even an adjournment to another day if you think things are getting a bit heated. “Time out” is a valuable reflection opportunity for everyone.

Creating options for agreement

A useful starting point for this stage is to identify the simplest area, or the one on which there is most agreement, and suggest resolving that first, to give a “quick win.” Useful techniques for developing options include brainstorming. At this stage, “anything goes!” You then need to help the participants to develop evaluation criteria, which should ideally be objective and in order of importance.

Your role here is chiefly to make sure that all participants are equally involved in generating options and developing evaluation criteria, and that they cover all parts of the problem. Make sure that you are reflecting their opinions and not your own, but you can point out linkages between options and/or problems.

Once the options have been evaluated, you’ll need to guide them to a single solution that suits all parties, and help them to fine-tune it if necessary.

Developing an agreement

Like objectives, an agreement should be SMART: Specific, Measurable, Attainable, Realistic and Time-bound. You can help the participants to achieve this by:

• Writing down the proposal in neutral language, and reading it back to them.

• Writing down individual points so they are clear and understood.

• Clarifying any general or vague points, for example, by asking the participants to agree to concrete behavioral changes with deadlines for achievement.

• Avoid legalistic language, and keep everything simple.

• Summarize progress and next steps, including setting a deadline for any future meetings, and identifying any remaining areas of difficulty, and options for their resolution.

• Being positive about progress and the fact that everyone has remained engaged.

• Offering your continued support as a mediator if required.

• Ensuring both parties sign the agreement then and there, and close the meeting once agreement is reached.


Skills mediators need

A mediator needs a range of skills, including:

• Active listening skills; questioning and clarifying skills; and emotional intelligence, to understand the underlying emotions.

• Summarizing skills to set out the main points of controversy, and underlying emotions, and also to help the participants to re-frame issues in less emotive language; and empathy, to help each party to stand in each other’s shoes and understand each other’s point of view.

• Perhaps most importantly, a mediator must not take sides, or be seen to be acting unfairly. You will therefore need to acknowledge points made by both parties, and spend equal time with each person or on their issues. It’s never going to help to point out that someone is being unreasonable, but you can help them take a “reality check” by asking what they would consider a reasonable outcome, and then asking whether they think the other party would agree. I have found it very important to make sure the parties know I do not take a side. This has been helpful in setting a tone of equal footing.

And finally...

Although a little humility is always a good thing, it is important to remember that mediation might not always work, and that it’s not always the fault of the mediator if it doesn’t. For example, if participants do not come ready to find a shared solution, it is going to be difficult to mediate one. Cross-cultural disputes are always going to be hard to mediate, because what is acceptable behavior in one culture may be totally unacceptable in another.

A good mediator will always try to be aware of what else is going on, trying to understand any hidden agendas and barriers to effective problem solving. An effective mediator will, at the same time, be able to distance themselves from the problem.

The role of the mediator is to help others resolve their problems in a mutually agreeable way without getting bogged down in the problem themselves. I have enjoyed learning from the process and look forward to continuing to work in helping people in this capacity.

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Jon P. Getz, Esq. is a partner with Vahey Getz LLP. Contact him at jgetz@vaheygetz.com.