Donald (Tad) Powers, Esq., Michael Marks, Esq., & Adam Powers, Esq.

  Vermont Bar Journal, Fall 2010

Civil Mediation: A Culture of Its Own

Donald (Tad) Powers, Esq.

            Mediation was billed as alternative dispute resolution, but in civil cases in the early 1990s it looked less alternative and more like an outpost of litigation culture, echoing traditional judicial settlement conferences and the adversarial style of the courtroom. Now, fifteen years on, civil mediation has developed a culture of its own.

            The paradigm in early mediations was the litigation paradigm; it was still about right versus wrong, arguing and persuading, observing form and ritual. Pre-mediation statements, if they were submitted at all, reflected the accusatory tone of a complaint. It was understood that there would be no ex parte communication with the mediator.

            When the mediation got under way, the mediator radiated authority and subject-matter expertise that would give weight to his or her eventual evaluation of the case. Attorneys made opening statements much as they would to a jury. Clients rarely said a word in joint sessions. Immediately after opening statements, the parties retired to separate rooms.

            The mediator then shuttled between rooms, using information and arguments from each room to sow uncertainty and doubt in the other room. The pace of the shuttle gathered momentum (on a good day) as tolerance levels were tested. If the bargaining dance left the parties glaring at each other across the floor, the mediator could share her view of the case, spiced with reports of what happened when similar cases were tried to judgment. That evaluation often did the trick, inducing concession and compromise.

            As an attorney representing clients in early mediations, I was comfortable with this approach. It was predictable and relied on familiar analytical skills. And mediation was often more fun than direct negotiation. Who doesn’t enjoy spending time with a sympathetic neutral instead of crotchety opposing counsel, or gathering the fruits of informal discovery, or schmoozing with a client while the mediator works the other room? Not least, bad news about the case could be delivered by the mediator so I could remain aligned with my client.

            Today, mediation has both stayed the same and changed radically. It is still a facilitated negotiation firmly managed by an impartial neutral. A joint session followed by caucuses is still the norm. Rigorous legal and factual analysis, outcome prediction, cost-benefit evaluation and hard bargaining are still fundamental. The old skills are still indispensable, but now, as a mediator, I see those skills being rapidly supplemented to take full advantage of what has become mediation’s own more flexible and adaptive culture.

            Paradoxically, a more fluid mediation process has evolved in the context of increasing structure. ENE Rule 16.1 in the U.S. District Court, Rule 16.3 in Vermont Superior Court, the Uniform Mediation Act,[1] and the environmental and family Court mediation programs have institutionalized mediation in civil and family cases. In a zen twist, the structure of mediation laws and programs may have allowed us the comfort and security to work more flexibly and responsively with a wider array of tools. Talking mediation is no longer seen as a sign of weakness; even the most adversarial litigators are required by the rules to talk about it and to work toward agreement on who will mediate and when.

            At the same time they are using adversarial skills to research and argue legal positions, lawyers are cooperatively negotiating the who, how, and when of mediation. Lawyers understand that working on competitive and collaborative levels at the same time is not only possible, it is in the best interests of clients, and it is professionally and personally more satisfying.

            In the old days of the 90s, mediations sometimes foundered because they occurred too soon or too late—too soon because not enough information had been exchanged, not enough research and analysis had been done; too late because the gap in positions had been widened by sunk costs of litigation and hardened emotions. Today, attorneys are thinking and strategizing with clients from day one about the optimal time for mediation. They are talking with opposing counsel, often in a phone conference with the mediator, about the most cost-effective ways to exchange information without the expense of full-blown discovery. These conversations are more frequently occurring before suit is even filed.

            Even the process of choosing a mediator is more flexible and productive. List serves, websites, and e-mail make it easy to check out a mediator’s training and experience and to consult colleagues who have used that mediator. And since mediation is no longer burdened by holdover worries about ex parte contact, attorneys can freely talk with a mediator before deciding to use her, find out firsthand about the mediator’s experience and style, and gain insight into the mediator’s ways of thinking and communicating.

            Mediation’s evolving culture really kicks in once the mediator is chosen. In the old script we would gather on the appointed day without prior discussion, do a joint session, do caucuses, settle or not. Now lawyers and clients expect and get a richer process. The mediator will schedule a phone conference with counsel well before the mediation to focus on the case and work out important issues: where and when the mediation will begin; that no one has time limits that will prematurely end the mediation; that full settlement authority will be present or alternative arrangements agreed upon; who beside the parties needs to be there to enable hard decisions to be made; the status of discovery, pending motions, and court deadlines; whether any informal information exchange is needed; when mediation statements will be submitted and whether they will be shared or confidential; the history and status of negotiations; whether it is realistic to plan a one-day mediation or whether more or shorter sessions should be planned; whether the traditional joint opening will be optimal or whether alternatives should be considered.

            Working through these issues prior to the mediation is important at the substantive level but even more so at the meta-level of “how-we-work-together.” The mediator gets to hear the tone and style of how counsel communicate, and to learn how to best communicate and work with these particular personalities. Everyone gets a feel for possibilities and for obstacles to settlement, allowing more focused preparation for the mediation.

            Clients also benefit from better advance work. They are educated about the varied roles their attorney will play in mediation. In joint sessions, clients can expect rigorous but not acrimonious advocacy. In caucuses, they can expect clear-eyed case evaluation and thoughtful recommendations based on the client’s most important interests, including not only the risks and dollar costs of litigation but also relationship, psychological, opportunity, and other costs.

            If counsel and the mediator have agreed that starting with a joint session is the best choice, attorneys tend to make more balanced and effective opening statements. They still present compelling narratives and case analysis, but avoid attacks on the motives or character of the other party. There is open acknowledgement that good people can have differing perspectives, and an express willingness to work in good faith toward settlement. Opening statements are no longer limited by custom to the attorneys. Clients often speak in joint sessions with powerful effect.

            After opening statements, the fluid climate of mediation allows for the possibility that parties may stay in joint session for follow-up questions and clarifying information. There is more trust in mediators’ and attorneys’ abilities to reframe unproductive statements in ways other parties can actually hear, and to shift direction if the discussion degenerates into argument. Mediators and attorneys have become more skillful at limiting expressions of negative emotion in joint sessions while providing a relief valve in caucus by actively listening (more on that below) and by acknowledging emotion comfortably so feelings can ebb and flow without flooding decision-making. [2]

            The mediator may not have to spend hours shuttling information and arguments that could more efficiently be discussed in joint session. On the other hand, the chemistry of the case and parties may make any joint session counterproductive and the decision may be made to start with separate caucuses, an approach that requires its own planning to get and keep everyone engaged in the process.

            We are free to make these tactical choices based not on rote or rules of practice but on the dynamics of the particular case. We pay attention to and act on what will best serve settlement at that moment. We take advantage of skills and knowledge gleaned from a wide range of fields, including the sciences of negotiation, psychology, communication, and brain function.[3]

            Perhaps the best-known example of negotiation theory as applied to mediation is the concept of “interest-based” or “integrative” negotiation, in which the goal is not only to distribute existing value among competing parties (a zero-sum negotiation), but to create additional value by exploring the specific interests and needs that drive each party’s negotiating positions.[4] Value is created by looking closely at what each party needs most and what each party might bring to a solution, including not just money but other assets such as access to goods, services, or knowledge, or a willingness and ability to listen and acknowledge another point of view, give or accept an apology, or think outside the box.

            By mediating efficiently, lowering transaction costs, and promoting creativity in the exploration and use of all available assets—for example by “trading across values,” giving something of low value to me but higher value to you in return for something of higher value to me and lower value to you—we often reach outcomes that give each party more than they could have obtained without mediation.

            On other fronts, psychology researchers have documented the significant cognitive and emotional biases inherent in negotiation, such as loss avoidance, selective perception, reactive devaluation, and risk aversion. Recognizing these biases allows us to compensate so that information that might otherwise be lost or rejected can be processed and used. For example, a proposal coming from the other party might be rejected out of hand, when the same proposal presented by the mediator may be acceptable. Or a party fixated on sunk costs can be encouraged to focus on avoiding future losses.[5]

            Communication research has shown the importance of making explicit what we do and do not understand about each other’s statements while reserving the right to respectfully disagree. Listening has become “active listening,” in which we pay attention not only to what is said but also to how it is said, carefully noting body language and other non-verbal cues. It means paraphrasing and reflecting back what we think we heard, asking for confirmation or clarification if we didn’t get it right. It means sending verbal and non-verbal signals with our own words and body that we understand what is intended, regardless of whether we agree or disagree.

            Simple examples of active listening include: “Whether I agree or disagree, I want to be sure I clearly understand what you mean. I hear you saying … Did I get that right?” “Let me rephrase what I think you’re saying, and you can tell me if I’ve got it right.” “Tell me more about why that’s important for you.” “When you say … what does that mean for you?”

            When I describe active listening to my law students, they sometimes yawn at the obviousness of it, but in mediation simulations when they consciously work on active listening skills, they find that proficiency requires a good deal of practice, reflection, and feedback. So why bother? Because scientists recording real-time neuronal activity find that the experience of being actively listened to slows heart rate, breathing, and metabolism, reduces stress, and promotes higher levels of cognitive (hence problem-solving) functioning. By contrast, people feeling misunderstood or unheard show activation of fight or flight systems and lower levels of cognitive and analytical functioning.

            If the goal of a communication is to put an adversary on the defensive, disrupt their game plan, instill fear, or press for compromise, then active listening may not be a useful tool. If the goal is to build rapport and trust, promote mutual understanding, appreciate multiple perspectives, be able to disagree without being disrespectful, encourage effective and cost-efficient problem-solving, and create value for mutual advantage, active listening is a valuable skill. It is just one of the communication and negotiation tools that attorneys and mediators did not study in law schools fifteen years ago, but which are now part of most law school curricula and are well established in the culture of mediation.

            How does this play out in practice? Using the caucus as an example, the mediator still helps the parties rigorously evaluate the costs, risks, and potential benefits of the litigation track. The mediator still provides reality therapy as needed and encourages the parties to persist when they begin to lose hope. And now the mediator is also consciously working with multiple levels of awareness, paying attention to the intellectual content of legal and factual arguments but also to body language, the tone, pitch, and rhythm of speech, facial expressions, and emotional expression.

            The mediator asks questions regularly, playing back his or her understanding of what has been said and asking for confirmation that he or she got it right. When strong emotion has been expressed, the mediator names and acknowledges that emotion without judgment so the feeling can begin to subside. When a party makes negative statements about another party’s motivations or character, the mediator reframes the statement to acknowledge the feelings without validating the party’s negotiating position or judgments about the other party. [6]

            The mediator also explores the layers of interest and need behind the positions, developing a wealth of information from which satisfactory solutions can be fashioned. The rapport developed through this exploration helps the party replace emotional reaction and cognitive bias with wise decision making. The mediator wants each person to feel heard, understood, and accepted so the person can relax, feel less defensive and victimized, engage in decision-making at higher cognitive levels with less emotional interference, and experience the literal change of mind that makes settlement possible.

            As another example, in a primarily distributive negotiation the mediator can make hard bargaining easier by using improved communication and negotiation skills. The mediator hears: “That’s no offer. We’re not even going to respond to that. They’re so far out of the ball park this case will never settle.” The mediator replies: “I hear your concern, but remember that first moves are usually poor indicators of true intention. This first proposal tells us almost nothing about where they may be willing to go today to settle this, and they won’t know from your first proposal where you may be willing to go. Instead of worrying about what they mean by this, let’s think about patterns of moves that will help each of you find out what the other is willing to do. The only failure will be if you leave here today without ever finding out what kind of settlement might have been possible.”

            When the going still gets tough despite our improving problem-solving and communication skills, the flexibility of mediation allows a wider range of tactical responses. The mediator might resort to “what if” questions to explore tolerance levels without asking for commitment, or caucus with one or more of the attorneys without parties, or, with counsel’s permission, caucus with one or more of the parties without counsel to process some of the personal issues. A joint session might be reconvened, or the mediation might be recessed with an action plan to take specific steps before reconvening, or to bring additional people into the mix.

            Experts in the case might be asked to meet separately with the mediator to be sure they understand each other’s points of view or to devise a mutually acceptable solution. I recently caucused separately with engineers for both sides with permission of counsel and parties. The engineers took pride in their professional ability to find technical solutions. In a separate caucus with me, they could stop competing as advocates for their clients. They instead competed to contribute effectively to a fix that everyone could live with and the case settled.

            A number of other gap-closing techniques might be employed, including the double blind, in which the mediator gives both sides a proposed solution. The first party finds out the other party’s response only if the first party has accepted the solution, so if the other party rejects the solution the first party has not effectively moved to the mediator’s proposal with no corresponding concession. Or the bridge, in which each party confidentially gives the mediator their best number with prior agreement that if the remaining gap is within a specified range the parties will take one last step to the mid-point. Otherwise the numbers are never revealed.

            If the impasse breakers fail and there is no willingness to reconvene, all is not lost. The parties may decide to go to trial but still negotiate ways to limit the costs and risks of litigation, including expedited discovery, stipulations to certain issues or evidence, or high-low limits on awards. The parties may choose to arbitrate instead of continuing to litigate or to arbitrate specific issues and litigate others. And if none of that happens, the mediator may call attorneys days or even weeks after the mediation to check on the progress of the case and explore further possibilities for negotiation.

            These are only a few examples of the many ways in which civil mediation has built on but is no longer limited to the norms and values of litigation. The culture of mediation has roots in the culture of litigation, but roots have also spread to other areas of knowledge and experience, allowing civil mediation to become more creative, adaptive and effective than we might have predicted fifteen years ago. It will be interesting to see where we are fifteen years from now.

Donald (Tad) Powers, Esq., is an attorney mediator with the ADR firm MarksPowers LLP and an adjunct professor teaching ADR at Vermont Law School.

[1] 12 VSA Ch. 194.

[2] Roger Fisher & Daniel Shapiro, Beyond Reason (2005); Douglas Stone, Bruce Patton, Sheila Heen. Difficult Conversations (1999).

[3] Christopher W. Moore, The Mediation Process (3d ed., 2003); John W. Cooley, Mediation Advocacy (2002); Paul J. Zwier & Thomas F. Guernsey, Advanced Negotiation and Mediation Theory and Practice (2005 ).

[4] Roger Fisher & William Ury, Getting to Yes (1999).

[5] Dwight Golann, Mediating Legal Disputes (2009).

[6] Mark D. Bennett & Scott H. Hughes, The Art of Mediation (2d ed., 2005).

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