Mediation Mind Shifts Series: Part 4
By: Harold Coleman, Jr., Esq., CCA, Senior Vice President, AAA-ICDR®; Executive Director/Mediation, AAA Mediation.org®
Mediation Mind Shifts are the critical, incremental shifts in thinking that must occur to move people embroiled in conflict from entrenched, diametrically opposed positions at the outset of mediation toward the goal of resolution at the end.
These shifts transpire in the parties’ perspectives on the people involved, on the law applied, on the “facts” interpreted, on the risks assessed—and on the very possibilities presented through mediated problem-solving and settlement negotiations.
If you don't know where you're going, any road will take you there. (Lewis Carroll)
This paraphrasing of Alice in Wonderland’s conversation between Alice and the Cheshire Cat illustrates the importance of having a direction. Otherwise, as the Cat says to Alice when she declares that she just wants to get “somewhere”: “you will get there if you walk long enough.”
Purposeful Preparation, a previous discussion in this mediation series, explored the importance of thorough pre-mediation preparation. A recent mediation case of mine illustrates how essential framing and managing party expectations are to a productive mediation experience.
During the typical pre-mediation prep of reviewing and analyzing the parties' written submissions and engaging each for in-depth private caucusing, it became apparent that the parties' representatives—both experienced and sophisticated litigation counsel—had different expectations of mediation and the process that would unfold upon formally convening the session.
One party expected a process more akin to a conventional mediation: introductions, followed by mediator and counsel opening statements, private caucusing, negotiation, and hopefully concluding with settlement.
In stark contrast, the other party expected more of an ENE, or early neutral-evaluation, process akin to nonbinding arbitration. That party's expectation was that the mediator would hear counsels’ opening statements, inquire further to clarify client positions and demands, and then assess the strengths and weaknesses of each side's position in private caucus discussions. This is similar to what an arbitrator might employ when taking testimony in an evidentiary hearing, leading to a merits-based assessment of party claims and defenses and ultimately to a final arbitration award.
At this stage, it was necessary to review with counsel the qualitative differences between mediation on the one hand and the more adjudicative ADR (alternative dispute resolution) process on the other. The goal was to bring counsel (and by extension the parties) into alignment on the process they envisioned and make informed decisions on whether their matter was ripe for mediation.
The reality is that, even with experienced counsel, a process-expectations mismatch easily can result when mediators miss opportunities to prepare parties and counsel for mediation reflective of aligned and reasonable expectations.
"Arbitration is like Waffles...Mediation is like Spaghetti."
This analogy provides a visual of the differences in these two ADR processes! So how is arbitration “like waffles?" Well, waffles have an extremely compartmentalized structure—each square is roughly the same dimensions, creating a highly predictable geometric pattern. As with the court system, the arbitration procedure is largely predictable in terms of the structure and format used to reach adjudicative decisions.
Metaphorically, one compartmentalized square could be viewed as "pleadings," others as "discovery," and "trial preparation," and yet another, "witness examination." Each of these processes tends to follow a very predictable pattern by which evidence is presented and considered by the arbitral tribunal.
Mediation, on the other hand, does not follow such a linear and predictable presentation format. Like spaghetti, mediation tends to be nonlinear and fluid and the steps highly intertwined—as are pasta noodles in a dish of spaghetti. And, to be sure, mediation, like spaghetti, tends to be messy.
This basic illustration helps more novice attorneys and mediators envision the anomalies and vagaries inherent to the non-adjudicative process of mediation. They should not expect predictability, compartmentalization, and so much of a well-established pattern as one would find in the adjudicative processes of arbitration and litigation.
The metaphor holds true for even experienced counsel and sophisticated parties when it comes to projecting what will occur at mediation and the very nature of the process itself. Strategic mediation prep is about managing party expectations of the process itself, the people involved, and the data (history, information, evidence, etc.) underlying the dispute that precipitates mediation.
So, what dispute resolution process was selected in that afore-mentioned mediation? Counsel agreed on a process characterized by conventional mediation, to be followed by a detailed neutral evaluation if the mediation did not result in a mutually workable settlement. By exploring party expectations and enlightening them on the various process options available to them, I was able to achieve consensus on process, a major step in building momentum toward mutually-acceptable outcomes.
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