By

Richard L. Gilbert

"Mediation" is commonly understood as the use of a third-party, the "neutral" mediator, to facilitate resolution of a dispute. Private mediation, unlike court ordered settlement conferences or mediation programs, is conducted pursuant to an agreement between the parties using a mediator that the parties have chosen mutually. Mediation has a proven track record of settling even the most difficult disputes while saving substantial time and money for the parties.

In a "traditional" mediation, the mediator acts only as an "honest broker". That is, the mediator has no stake in the outcome and makes no "rulings" or "orders", but only assists the parties in reaching their own agreement. This is done by: 1) guiding the parties to better understand their own and their opponents' settlement and litigation goals, 2) facilitating communication between the opponents, 3) helping identify areas where the parties agree and assisting the parties to better define their disagreements and, 4) helping the parties uncover areas where compromise and possible complete or partial settlement can be achieved. In this way, the mediator provides the "process" for the parties to effectively resolve the controversy themselves, but throughout the process, the parties remain in control of the "content" of the mediation.

In a traditional mediation, the mediator offers no opinions on the issues in the case. In many cases, however, the chances for settlement are improved when the parties have the benefit of the views of an experienced mediator to assist in reaching an agreement. An objective opinion on how certain issues may be viewed by a court or jury or what outcomes of the entire case could be expected are often helpful in objectively analyzing settlement options. The mediator can also promote settlement by making suggestions based on experience of what a fair settlement might be and can assist the parties in formulating their settlement suggestions and approach. Even where the mediator expresses such opinions, however, all parties remain free to make or not make any offer or to agree or not to any proposal based on their assessment of their best interests.

In reality, there are infinite varieties of "mediation". The procedures followed in any particular mediation will depend on the parties, the nature of the dispute, whether there is a litigation pending and on other, less tangible factors. The personalities of the participants, the style and skill of the mediator and business, policy or personal factors may make settlement easier or harder or limit the options available within the process. All of these things affect how a successful mediation ought to be done. Every mediation is a fluid and dynamic process that may look like one "model" at the beginning, but may evolve into another or, as often happens, into its "own breed". For this reason a skilled mediator will constantly assess what's happened, what's happening and what ought to happen next.

In a trial in court, either a judge or jury decides the case based on their view of the evidence. The jury or judge decides who "wins" and who "loses". In most cases, the party who loses in court has certain rights to appeal the decision so that the final result may not be known for some time after the "verdict". Arbitration is essentially the same as a trial where the judge makes the decision. In an arbitration, however, one or more privately paid arbitrators hear the evidence presented by the parties to a dispute and decide who wins and who loses. Most of the time, the determination of the arbitrator is final without significant procedural wrangling afterwards.

In mediation, on the other hand, the mediator makes no decisions. No one "wins" and no one "loses" because the result is an agreement that everyone accepts. The parties always remain in control and can accept or reject any proposed settlement. Once the settlement is reached, it is final. The terms of the settlement usually include specific methods by which the parties are assured that the agreement is carried out quickly and completely.

The mediation process ought to be one that the parties are comfortable with and which is designed to fit the individual circumstances. Also, different mediators have different approaches. Nonetheless, there are elements common to most mediations. Here is a general description of a process that I often use.

This is a step that can take place before a final agreement to mediate is reached or as a first step of an agreed mediation. The process may require a meeting or conference call among the parties and the mediator to do some or all of the following: 1) identify the parties needed for an effective mediation and how they are to be represented, 2) determine the information to be exchanged between the parties and the mediator in preparation for the mediation, 3) identify preliminary goals for the mediation 4) gather the parties' ideas concerning the mediation process itself, 5) discuss the "rules" for the mediation, including whether there will be a formal mediation agreement and, if so, what it ought to say. (Such agreements would cover things like confidentiality of the process, responsibility for the mediator's fees and other important issues.) and, 6) discuss the date(s), times and locations of the mediation meetings. In many straight forward cases, this does not need to be a separate step, but is something that can be done simply when dates and times for mediation are arranged.

A pre-mediation meeting can be very helpful where one, or parties, are reluctant to participate in mediation or there is some controversy over the selection of the mediator. Often, such reluctance is due to misunderstandings of what mediation really is, or involves questions about a proposed mediator's approach or style. These questions are often resolved by a pre-mediation conference where the parties are free to discuss an acceptable mediation agreement without advance obligation.

After the initial assessment, the mediator will confirm the participants, the process and the nature of the agreement to mediate. If there is to be a formal agreement, which I recommend, the agreement is circulated for signature.

a. Opening Session. The mediation will typically begin with all parties, their counsel and the mediator assembled together. I begin the meeting by introducing the participants and outlining the process, my role as mediator and the role of the parties and their representatives. The introduction focuses all participants on the common goal and begins the process of their involvement. The introduction also serves to give the parties a "flavor" of my style and approach.

Based upon the pre-mediation assessment, the mediator may want a representative of each party to make a brief "opening statement". Allowing opening statements can let the sides feel they have "had their say". This is sometimes very important to overcoming the real barriers to settlement. However, the giving of an effective, non-confrontational mediation opening is a true art form. A confrontational, uncompromising speech can end the process before it begins. A successful mediation opening statement makes the point that there is merit to the party's position, but also clearly communicates that the party recognizes merit in the views of the others and is receptive to listening, learning and compromise. If I feel these goals cannot all be accomplished, I will skip such party presentations in favor of moving quickly to individual "caucuses", described below.

b. First caucuses. After the opening session, I meet separately with each party and counsel. These meetings are typically called "caucuses". It is an iron-clad rule that the discussions between the mediator and the parties in these separate caucuses are absolutely confidential. The mediator must not disclose confidential information and strategies or positions learned in such sessions without permission of the parties. Where more than one party is "aligned" in the dispute, this first meeting may be between all the parties on one side. In almost every new case, however, there should be at least one early separate meeting between the mediator and each individual party.

The primary objective of the first caucus meeting is for the mediator to learn the parties' mediation goals and the basis for the parties' positions. The mediator needs to understand each party's spoken and unspoken goals and the real and perceived barriers to compromise and settlement. First meetings rarely involve discussions of "bottom lines". Such discussions should be avoided early in the process, as they tend to polarize and harden positions at too early a stage of the process, before the mediator and the parties have had the opportunity to more fully explore settlement issues, options and benefits. However, the mediator should begin to lead the parties towards a clearer and more precise articulation of the interests that need to be served in a satisfactory outcome, leaving the specific ways that such goals can be achieved or, sometimes, compromised, to later discussion. As mediator, I generally ask the parties to give their opinions on the strengths and weaknesses of their case and on the positions of the other parties. At some point, I will want their assessment of the possible range of verdicts if the case were in a trial, the costs of litigation and the risks that they feel they face in "winning" in court. If counsel and the parties have not considered these issues in advance of the mediation, I ask them to do this while I meet with the other parties.

c. Follow-up caucuses. After the "first round" of caucuses, the mediator will have some idea-sometimes clear and sometimes not-of the nature and magnitude of the task ahead. This is a time to reflect on the process, re-assess the intended agenda, and confer with the parties on their view of what should be done next.

After this re-assessment, the mediator will usually begin a new round of caucuses. While the process of education always continues, the next round of caucus discussions is generally where more specific settlement goals and objectives are identified, if they are not already clear. Issues the parties have raised are discussed and assessed and new issues that may have been overlooked are suggested for consideration by the mediator. In addition, the mediator will start to focus the parties on specific options and paths to settlement.

While having additional joint meetings with all parties is sometimes helpful, the caucus sessions are usually the "soul" of the process. It is in the caucus sessions that the mediator draws out the parties to consider the views of others, tests their assumptions, and suggests alternatives for consideration that the mediator has gleaned in the process of caucusing. During the caucus sessions, the mediator can also assist the parties in formulating settlement proposals that both advance their interests and are more likely to be responsive to the interests of the other parties.

Sometimes, developments in the process suggest that the mediator abandon the strict role of the honest broker and offer observations on the weaknesses or strengths of the parties' positions. This is sometimes called "Neutral Evaluation". I am often asked to do this as the analysis of a neutral party with extensive experience as an attorney, judge and mediator, while not binding on the parties, can be helpful to a focused analysis of settlement opportunities and benefits.

When all of this is done, it is hoped that there will be an agreement to memorialize. That doesn't always happen. Moreover, sometimes only part of a dispute can be resolved or a dispute can be resolved between some but not all of the parties. All are acceptable outcomes, and all are possibilities to be kept in mind. Where the whole dispute cannot be resolved, consideration should be given to ways to better define or narrow the remaining issues and to finding a more streamlined or constructive way to resolve them.

Complete Confidentiality. Unlike a trial, which is open to the public, all discussions, data and information exchanged during mediation remains confidential.

Expeditious Results. Compared to trials in court or even arbitration, a case can be resolved very quickly through mediation. Trials may not take place for several years after a case is filed. And, because the courts are so crowded, cases are often continued for months at a time while the parties wait for an available courtroom and judge.

Neutral Input. In mediations I conduct, the parties will have access to an informed neutral opinion on various aspects of the dispute. In a trial or arbitration, such an opinion comes only at the end, and then it's the final result, not constructive input the parties can use to arrive at a mutually acceptable resolution.

Lower Litigation Costs. Because of savings of expert fees, court costs and legal fees, a successful mediation, even one that requires several days to complete, invariably costs much less than even the shortest trial. Mediation can be used successfully very early in the life of a dispute, even before a case is filed in court. The earlier the case is mediated, the greater the potential cost savings.

Flexible Solutions. In a mediation, the parties remain in control of the outcome and enjoy the widest range of choices in fashioning solutions which will work for them. In business disputes, for example, early mediation can often save or restructure business relationships and benefit both parties. Even in cases where the claim can only be settled through payments, the payments can be structured much more flexibly through mediation, often resulting in tax savings and mutually beneficial creative payment methods. In contrast, a court or arbitrator will usually have only one or two choices of specific results after deciding who wins and who loses. In such situations, often no one wins.

To get the most benefit from mediation, it is generally true that earlier is better. It is also true, however, that the participants in a mediation need to have enough information about the facts and circumstances of the dispute so that they will be able to make tough decisions and rational compromises. This doesn't mean that there needs to be months of costly discovery. Multiple, lengthy depositions of witnesses and exchanges of voluminous documents are often not necessary but the exchange of a least basic information is usually essential. Where mediation is considered early in a dispute, a process of quick and simple basic discovery can be agreed on so that the parties have enough information to make intelligent choices, but still avoid full-blown, costly "discovery wars". The mediator can assist the parties in negotiating these kinds of agreements.

Overall, mediation results in the settlement of most cases. In the mediations I have conducted, over 80% of the cases resulted in settlements agreeable to all parties.