By Roy N Martin, Attorney
The first installment of this article on the range and breadth of mediation detailed the three types or paradigms of mediation: Evaluative, Facilitative and Transformative. In part two, strengths and weaknesses of each approach were explored. In this last installment, the focus is on recommendations for attorneys to achieve best outcomes when bringing cases to mediation.
Let’s first define the term “best outcome.” At its most basic level, parties come to mediation to settle issues that would otherwise require litigation. Ideally, all issues are resolved and all court dates struck. However, mediation done well can lead not only to resolution of issues before the court, but also to win-win settlements that leave both parties feeling satisfied. This difference between grudging settlement and the true “win-win” is squandered when evaluative mediation is reflexively employed in cases where another approach would have been more effective.
Whether it’s reasonable to set such high expectations depends in part on the case. There are clients for whom anything more than basic settlement is not realistic and there are types of cases for which it is not applicable. If a person is suing a corporation because he/she was injured by a defective product, there may be no possibility of “win-win” and certainly no relationship worth preserving. But attorneys should be careful to avoid thinking narrowly. I know the possibility of mutual satisfaction in legal disputes can seem unrealistic. However, sometimes what’s missing is our capacity to recognize possibility. Attorneys can both facilitate win-win results or put them out of reach, and we often do the latter without realizing it or having intended to do so simply because we weren’t aware that there might be another approach. Our clients often know only what we tell or show them, and thus if we truly intend to serve their interests, we need to be informed and knowledgeable regarding the full range of options.
In cases involving divorce with children, where the parties are going to remain (for better or worse) connected for life, the rebuilding of trust has obvious value. But there are other types of cases where parties might obtain value by working together to optimize agreements and, perhaps, if all goes well, even restore positive regard for one another.
Consider, for instance, probate, where the parties are most often family members. Imagine the benefit to clients who are able to cross paths at family functions without discomfort. Consider disputes between neighbors. Perhaps they don’t wish to be friends, but they might prefer to avoid the awkwardness of moments when, living in close proximity, they inevitably encounter one another. Some friends of mine recently sold a lot they had intended to build upon due to conflict with a neighbor. After expending enormous sums of money and emotional energy on figuring out every detail and paying to have plans drawn up, they gave up on building their dream home. It’s worth noting that there was no legal impediment to their moving forward. The conflict just soured the experience to the point that it seemed no longer worthwhile. For them, the cost of not being able to resolve conflict can be measured both in dollars and dreams lost. In collaborative divorce we say, “It’s easy to value the 401k but what would it be worth to dance at your daughter’s wedding?” Between neighbors, one might ask “What would it be worth to feel comfortable mowing your lawn or pulling out of your driveway?” For my friends, “What’s the value of pursuing your dream?” In cases between businesses, in what ways they might benefit from future contracts or dealings, or perhaps what is the value of goodwill in the community?
Rather than thinking in terms of which style of mediation is “best” overall, ask which style is best suited to a particular case. It’s important to understand that mediators are not limited to one approach. In my view the best mediation occurs when styles are mixed and matched across the entire range of options.
I’ve seen high quality evaluative mediation (conducted by mediators whose skills I admire) where, after shuttling back and forth for a time, a potential opens for the parties to talk directly to each other. Unfortunately, sometimes the mediator, though skilled in the evaluative model, lacks confidence that he/she will know what to do if conversations become heated. Therefore, a mediator may have a blanket prohibition on parties being in the same room. As a result, the opportunity for deeper resolution is lost.
At the other extreme, a mediator religiously committed to non-evaluative approaches or to always being neutral may avoid telling parties that they’re turning down deals better than any result likely to be obtained in court. In addition, power imbalances can render non-evaluative approaches inappropriate.
For these reasons, attorneys and judges should be well versed and comfortable with the entire range of conflict resolution. In my view, many cases in which evaluative mediation is reflexively employed would benefit from non-evaluative approaches. When parties limit themselves to evaluative mediation, quite often a very real potential for a far better (more satisfying and lasting) results is foreclosed.
Though employing a mediator knowledgeable in a specific type of law can be helpful, keep in mind that it may not be essential to a particular case. I say this in part because peacemaking skills are typically overlooked and undervalued. Enormously effective mediation can occur without the mediator knowing substantive law because he/she guides the parties beyond conflict by helping them to see each other’s points of view and appreciate what the other is up against rather than by pushing toward a particular outcome. At the same time, there are cases where it’s helpful for the mediator to be well versed in law.
When attorneys have a challenging dispute that they and their clients are committed to settling, it might be wise to consider breaking the mold. I say this because it takes tremendous time, energy and commitment to develop peacemaking skills. Litigators typically spend the bulk of their time developing litigation skills. Litigation and peacemaking are very different domains. And the people who develop one set of skills are typically not the same as those who are drawn to the other.
When it comes time to mediate, litigators typically favor evaluative mediation because it makes sense to them. Other approaches may seem impractical, even nonsensical. So they hire an evaluative mediator with expertise in the legal issues presented. However, a mediator who understands law well but isn’t trained in conflict resolution is likely to miss all sorts of cues and opportunities that could have led to an easier, more effective, satisfying and lasting settlement.
In dispute resolution centers around the state, co-mediation is common. Co-mediators in that setting are typically teaming in a facilitative model, often with far more effectiveness than a single mediator alone. Co-mediation can also be employed in settings where the mediators have complementary approaches. If one has expertise in the evaluative model (including a knowledge of substantive law) and the other has a broader range of conflict resolution skills, all sorts of possibilities may open that would have been out of reach had either been employed alone. Mediation styles can be mixed and matched as long as the mediators share the stage well. It’s completely possible to explore feelings and needs in one moment, facilitate dialogue the next and provide appropriate evaluative feedback in ways that do not prevent interest-based explorations from unfolding.
Yet another creative option is to employ an evaluative mediator but bring in another attorney with an understanding of interest-based negotiation to consult regarding settlement possibilities that might open at mediation or even to represent the client in the mediation setting. Our community includes numerous collaborative attorneys with expertise in spotting opportunities for win-win settlement that those less practiced in interest-based negotiation might miss. I’m sure there are other ways of merging conventional legal approaches with the power and potential of the full range of peacemaking options. We are limited only by the extent of our willingness to be creative and try novel approaches.
When I practiced in another jurisdiction, experienced attorneys were asked to volunteer time as pro tem judges to conduct settlement conferences to help lighten the court’s load. Most of us made ourselves available because it was an honor to be asked and a nice way to offer something of value to the community. Each of us brought a unique skill set to such work. Since I’m a mediator/attorney who loves facilitative and transformational approaches to resolving conflict, I was open to opportunities to use those skills even though we were in clear evaluative territory – a week shy of trial, with parties firmly entrenched in their positions and cases that had defied earlier attempts to settle. We were given an hour; not much time to discuss settlement, let alone explore underlying interests. Our job was to see if we could at least narrow the issues that had to go before the judge.
Even in this setting, on the verge of trial, with so little time, there were occasions when miracles happened. That’s because people are human. We all have basic needs to be seen, heard and understood. It wasn’t uncommon for a party to express emotion. Attorneys and evaluative mediators most often dismiss emotions as irrelevant and outside the scope of the discussion. But if, when appropriate, one asks questions to help bring underlying needs to the fore, sometimes the person will speak authentically. In fact, often that person will feel relief at having the chance to speak and be heard around feelings and needs that weren’t encouraged before. And sometimes the other party listens and reciprocates. Though certainly not true in every case, there were times when, much to the astonishment of all present (myself included), the discussion would shift rapidly in unexpected ways. Sometimes seemingly intractable cases settled once the parties had begun touching into the underlying feelings and needs that had been fueling the litigation.
It is my hope that as the legal community becomes familiar with peacemaking approaches beyond the scope of the evaluative model and sees that they work, facilitative and transformational approaches will be routinely employed. I feel confident that those who explore those possibilities will be rewarded with clients who are far more satisfied with each of us and with the legal community as a whole. In addition, the approaches advocated in this article can result in far higher levels of professional satisfaction for us, the ones on the front lines of conflict and in the trenches. Litigation carries enormous downsides for professionals. When effective peacemaking approaches are employed, unhappy clients, bar complaints and negative online reviews become rare. Thank-you notes and positive online reviews become the norm.  Coming to work becomes fun. One feels a sense of satisfaction because clients are appreciative and one has a sense of making a positive difference in the world.
 I share the following comment not to show off. We all have our share of appreciative clients. Rather, I reference this recent Google review to illustrate how enormously satisfying this way of approaching cases can be (at least on those occasions when all the pieces fall into place).
A party to a mediation recently wrote, in part: “When my husband of 32 years and I sought . . . help to dissolve our already-broken marriage, (we received assistance that) . . . transformed us individually, and as a couple. (We learned) about the nature of healthy and unhealthy relationships along with the reality and pain that comes as they are dissolved. (We explored) the deeper levels of complex emotions that can arise as well as how to navigate the tumultuous waters of grief as we face the loss of relationship. After attempting to agree on financial matters and getting nowhere, we were challenged to confront the underlying issues in our marriage by naming them, owning our own decisions and actions, and asking/granting forgiveness for the ways in which we each hurt the other. . . . This one session was transformational for each of us because it brought to light some core issues that had truly never been understood, or effectively addressed. It also provided us with a sense of closure for our relationship that felt respectful, loving, and authentic. That propelled us to move forward in coming to agreements that will allow us each to live independently, without the burdens of a win/loss situation. (This approach) left us feeling healthy and whole and ready to move forward . . . .”