Some Good Questions

In 1998, commenting on the hot controversy about the “Rand Report’s” finding that certain mediation programs did not save time or money (measured in terms of lawyers’ work hours), Professor Craig McEwen argued that it was the wrong question to ask whether “mediation works.” Critics of the Report had argued that its methodology led to a false impression that mediation doesn’t work. McEwen suggested that “Instead of asking whether mediation works or not, we need to examine how and why parties and lawyers “work” mediation in varying ways.” Craig A. McEwen, Managing Corporate Disputing: Overcoming Barriers to the Effective Use of Mediation for Reducing the Cost and Time of Litigation, 14 Ohio St. J. on Disp. Resol. 1, 3 (1998).

 

I have a similar reaction to the title of the Cardozo symposium, “Is Mediation a Sleeping Beauty?” and the descriptions of the presentations in Lela Love’s post (via Art).

 

A few caveats before I explain my thinking. I understand the value of a provocative symposium title and this one obviously captured people’s imaginations. Of course, it is very hard to capture nuances in a single sentence summary or even in fairly brief symposium presentations. The symposium articles may address some of my concerns.

 

The presenters are, indeed, luminaries in our field and many are good friends who I like and respect a lot. It sounds like the symposium was stimulating and great fun. I’m sorry I wasn’t there.

 

I agree with many of the concerns that presenters expressed. When I was in private practice, doing mostly divorce mediation, I used procedures I think they would say are desirable (if not beautiful). Some time ago, I wrote an article expressing concern about what I called “liti-mediation,” which I argued could decrease the quality of parties’ decision-making and consent.  I have written about bad faith in mediation. Like some presenters, I favor things such as the use of joint opening sessions, direct party participation, focus on the full range of parties’ relevant interests, and limitation of use of mediator evaluations as much as appropriate.

 

Considering all this, what’s my problem? (There are many theories about this but we will save them for another time.)

 

In brief, this sleeping beauty discussion (at least as described in the summary) oversimplifies a very complex phenomenon and turns it into a counterproductive morality play of good and evil. I think it is counterproductive because I think that it mischaracterizes the problems, risks alienating needed allies, and can lead to less effective strategies for solving the problems. Since I didn’t attend the symposium, I don’t know how much my concerns would apply to particular presentations (and thus the “shoe may not fit” some of them). Although my concerns may not apply to some presentations, I have heard many people in our community express these ideas.

 

First, mediation is not a single uniform thing – and it is not an actor with independent agency. The term refers to an incredibly diverse range of procedures that people use in various ways. Echoing Craig McEwen, instead of asking whether mediation is a sleeping beauty, I think it would be more helpful to ask why people use “it” in more or less beautiful (or useful) ways and how we can help people use “it” better.

 

I suspect that most of us would agree that the mediation process differs greatly depending on many factors including, but not limited to, the subject matter, the sophistication of the parties, the nature and extent of their preparation, their interests, their goals for the process, their procedural preferences, the prior relationship of the parties, any desire of the parties to have a future relationship, whether and how lawyers participate, the mediators’ general goals and preferred approaches, and the legal and mediation practice culture. So I think that we should normally avoid generalizing about mediation as if it is a single, uniform process.

 

I wonder if anyone at the symposium mentioned the truism that “beauty is in the eye of the beholder.” Mediations that some would call a beauty, others would call a beast and vice versa. While most of us might agree on the extremes, I suspect that most mediations are somewhere in “the middle” with much less consensus about the amount of beauty or lack thereof.

 

Although the Sleeping Beauty story provides a vivid metaphor that you might say is just a hook for discussion, it reflects a polarized vision of good and bad that I hear a lot in our community. “Our” preferred version of mediation is the virtuous, beautiful princess and the “other” version is the bad, ugly step-sister. In this fairy tale, “we” are the chivalrous heros and heroines who rescue sleeping beauty from the villain, often cast as lawyers and/or the courts.

 

In an article, I wrote, “Procedures are inanimate phenomena that should be means to ends, not ends in themselves. Yet many of us make fetishes of our favorite procedures as if they have some extra measure of goodness. These procedures are incredibly malleable and can yield better or worse effects depending on many things, especially how people use them. . . . Rather than making procedures the protagonists in these stories, we should celebrate humans and their wise and caring actions when working with conflict. This includes judges and lawyers who choose between the various procedural options (including, but not limited to, trials) to promote appropriate goals for litigants and societies. Judges can make some of their best contributions by helping design and manage disputing systems as well as trying cases. . . . Mediators and arbitrators are often heroes, helping people work through conflicts. . . . Instead of investing so much of our cultural resources in myths about our most (or least) favorite procedures, we should invest more in realistic stories honoring people who work together to make good choices in using procedures to satisfy people’s interests.”

 

Like it or not, mediation conducted in the shadow of the courts relies on the cooperation of lawyers and judges. So, purely as a matter of self-interest, we do well not to demonize or alienate them. Moreover, I think that general characterizations of them as subverters of “good mediation” are inaccurate oversimplifications of their perspectives, which are quite diverse.

 

I would start with a rebuttable presumption that lawyers and judges in a community generally are trying to perform their functions as well as possible given their perceptions of their goals in their roles and their particular practice culture. Mediators can work with lawyers in individual cases to negotiate appropriate procedures as recommended by the ABA Section of Dispute Resolution Task Force on Improving Mediation Quality. Following one of the Task Force’s key recommendations, parties and lawyers can prepare for mediation by using the “mediation guides” that the Section developed. (FYI, I was a member of the Task Force and helped draft the mediation guides.)

 

Mediators have a hard time when they work in practice cultures with norms different from the mediators’ preferences. These situations could benefit from dialogues between representatives of the different stakeholder groups seeking agreements about procedures and norms that satisfy the interests of the various stakeholders, especially the parties. In such a dialogue, mediators might ask questions such as the following: What are the interests of lawyers and courts in mediation? What do lawyers and judges think are the parties’ interests? Are lawyers open to considering that some parties may have interests in addition to resolution and maximizing their partisan outcomes? Under what circumstances would lawyers be open to using particular mediation procedures? How could lawyers and courts work with mediators to promote the most productive mediation practice culture and norms?

 

I’ll be curious to read what the symposium speakers recommend to revive their preferred visions of mediation.

 

What do you think? Email me. You never write. You never call.

 

Best,
John

7 thoughts on “Some Good Questions”

  1. I agree with a lot of the points made here. As a student I can recognize that lawyers will have a preferred method of conducting mediation and if that method doesn’t match with the preferred method of the other lawyers involved, the mediator, or anybody else that is involved in the process in some way there will be some sort of conflict. One of the most important skills that we can have, as lawyers, going into mediation is to be flexible and open to working in ways that they may not be 100% comfortable with. While I agree that some sort of dialogue encompassing the questions in the last paragraph can be beneficial, at the end of the day isn’t it less about the “beauty” of the process and more about making sure that the individual parties needs are served?

  2. Thanks for your comment, Colin. It helps me clarify my points.

    I definitely agree that the ultimate goal should be satisfying parties’ interests. The recommendations in the Task Force on Improving Mediation Quality and the questions for parties to consider in the mediation guides are designed to help parties in particular cases achieve their goals as much as reasonably possible.

    The reason I wrote the last paragraph is that some mediators feel overly constrained by the lawyers’ expectations in their mediation practice culture. Articles by Lynne S. Bassis and Eric Galton and Tracy Allen in the latest issue of Dispute Resolution Magazine, for example, describe pressures on mediators to dispense with joint opening sessions. Some mediators would like to have robust joint opening sessions and direct engagement of parties but many lawyers don’t want to use these procedures. Mediators may feel reluctant to insist on such procedures for fear of alienating lawyers who might not cooperate in the current case or hire them in future cases.

    Thus, while it is good for mediators to discuss with lawyers the procedures to use in individual cases, it may require more general changes in legal culture for mediators to have the freedom to use a wide range procedures tailored to the needs of the parties in particular cases. Does that make sense?

    Thanks again.
    John

  3. I agree with Mr. Lande’s comments in his article on November 25th, 2014. As I read the article and comments I have a few questions and comments to add.
    What type of mediation is Mr. Lande referring to?
    There are different types and styles of mediation. It is a process and I have coached many lawyers in interest based mediation. The skills to find interests are very different than the extensive legal training lawyers have received. So often a directive or evaluative style of mediation is more comfortable for lawyers in this field.
    When working with clients in conflict I am curious about their intentions and their intrinsic motivations to participate in the dispute or participate in the resolution of the dispute. This information is very helpful to design a process that will fit for the people involved.
    I believe in transformative mediation. Conflict is a learning place in life and finding a safe place to explore our internal beliefs, attitudes, values and needs is not easy. Interest based mediation can provide a structure that is safe to do this exploration. It is only with a full understanding of our needs can people move forward and find some resolution.

  4. I agree with the point that whether a mediation is considered a “beauty” or a “beast” in many cases depends upon the eye of the beholder. Mediation, as well as arbitration or litigation, has its advantages and disadvantages. While there are many advantages to mediation (cost, time, mediator knowledge, etc.), there are also many situations where mediation can leave more to be desired. As much as we would like mediators to be “heroes,” some times facilitating discussion and encouraging negotiations can still result in an impasse, and may be viewed as ineffective. Mediation can certainly be a beneficial alternative to litigation, especially when lawyers and mediators maintain an open mind and dialogue, but the ever-looming potential of impasse will always lead some parties to prefer other means to find a resolution.

  5. I agree with Mr. Lande’s argument that there is no one correct method of dispute resolution. In the traditionally adversarial atmosphere, there is a tendency to pose methods as good versus bad and winners and losers. However, it is important to avoid such a dichotomy in analyzing methods of dispute resolution. A good method of dispute resolution is the one that best serves the interests of the participants. Therefore, while it is attractive to compare dispute resolution to fairy tales, the notion that mediation is good or bad is not an accurate description of the process. Although the symposium title might not adequately describe all of the viewpoints of the speakers, it is essential to remember that mediation similar to all methods of dispute resolution is about the participants. Thus, it unfair to the courts, judges, lawyers, and party participants, to pose one as a villain with the other playing the role of hero. All parties play their own roles to achieve the ultimate end goal, which is to properly serve the interests of the participants.

  6. Thanks for your comment, Nancy. Apologies for the delay in responding.

    You asked what kind of mediation I was referring to. That gets to my point that mediation is used in a wide variety of contexts and the procedures and norms vary greatly. This is why I cautioned about making broad generalizations about “it.” Many symposium speakers probably limited their comments to specific contexts and it will be interesting to read their articles, where they can identify the contexts they are referring to.

    Let me quibble with your statement, “It is only with a full understanding of our needs can people move forward and find some resolution.” I certainly agree that analysis of parties’ needs is a valuable approach and I think it generally is an appropriate first step for lawyers and mediators. However, I’m sure that many people resolve disputes without carefully analyzing their own needs let alone discussing them with their counterparts. Sometimes this is due to lawyers’ preferences, fears, and/or habits. Sometimes the parties themselves don’t “want to go there.”

    When I was in private practice, that’s where I wanted to go with my divorce mediation clients (and lawyers never attended my mediations). However, I found that some of my clients resisted my efforts to get them to discuss their underlying interests and they just wanted to resolve their issues, thank you very much. I didn’t want to be like the boy scout trying to help people across a street – but in a direction they didn’t want to go.

    So in my opening statements, I described both approaches and asked which they preferred. If they said they didn’t want to explore their interests, I told them I would honor their preferences but that if they got stuck, we might need to discuss their underlying interests to help get unstuck. Although these mediations weren’t as satisfying for me as cases where parties did want to examine their interests, I didn’t want to fight my clients about this. After all, it was their mediation, not mine, and I wanted to honor their decisions about the process as well as the ultimate issues.

    Nancy, I imagine that you might agree with some or all of this. What do you think?

    Thanks again for writing.

    Best,
    John

  7. Thanks to James and Ellen for your comments. Again, apologies for the delay in responding.

    Briefly, re James’s comment, I generally agree with you. I generally qualify “advantages of mediation” with words like “potential” or “common.” I suspect you would accept this as a friendly amendment given the rest of your comments, is that right?

    And, Ellen, I agree with you agreeing with me.

    Thanks for your contributions.

    Best,
    John

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