Neutral Corner: Use of mediator’s proposal should be a last resort

NeutralCornerBW.jpgMediation got an early and strong foothold in California in the late 1980s and that state has been an incubation site for several trends in the mediation process – some good, some bad and some perhaps a little ugly.

The good would include the aggressive and consistent enforcement of California’s strict mediation confidentiality rule by the state’s Supreme Court. (see i.e Cassel v. Superior Court, 244 P. 3rd 1080 (Ca. Sup. 2011)). The not-so-good, and some think ugly, would include two recent trends in the practice among California’s mediators. One is a de-emphasis or elimination of the joint session; the other is an increased use of, if not dependence upon, mediators’ proposals.

This drift in the mediation process, perhaps focused in but not limited to California, has been noted by several leading mediators and commentators. Among them is New Zealand commercial mediator Geoff Sharp. In his article, “The Californication of Mediation,” Kluwer Mediation Blog (December 2014), Sharp laments the “relentless demise of the joint session” and the fact that the mediator’s proposal “has now become the endgame rather than a rarely used intervention technique.” There is, he writes, “jockeying for ‘advantageous impasse’” hoping for a good mediator’s proposal.

Sharp also notes other recent observations, including the article of experienced mediators Eric Galton and Tracy Allen in the fall 2014 issue of the American Bar Association’s Dispute Resolution Magazine titled “Don’t Touch the Joint Session.” They write: “Many of us wondered what the mutant child of the marriage of law and mediation might look like. Now we know: deconstruct the process and turn the mediation into the more familiar settlement conference.”

Jeff Krivis, an experienced California mediator and author, has witnessed the shift in process firsthand and observes: “One strategy that has become commonplace is for lawyers and companies to use the mediation session as sort of a ‘scratch ‘n sniff’ opportunity. The idea is to check out what might be below the surface but don’t let the other side know you’re open to settlement.” “The Settlement Drift,” Kluwer Mediation Blog, (June 16, 2014).

Although the concerns of these observers are valid (especially pertaining to the increased use of mediators’ proposals), it appears to this observer that the issue is as much a matter of definition and description as it is of substance, and that the commercial mediation process in the Midwest is alive and well.

To the extent parties are abandoning the joint session in which each side makes a more litigation-style advocate’s presentation, such practice is consistent with our experience in the Midwest. Few of our commercial mediation sessions start with such presentations. (There are important exceptions where such presentations are necessary, such as when the matter has been scheduled for more than one day.) In the majority of cases, however, the initial get-together of all counsel and parties is more of a review and planning session, an informal exchange and back and forth, setting the stage for the negotiations to follow. Such sessions, if properly conducted, do not “polarize” the sides or “set the process back” or get it “off on the wrong foot.”

Rather, such meetings are critical in launching the negotiations and building a base upon which the negotiations can proceed. Although necessarily adversarial because of the reality of litigation, such sessions can be conducted in a straightforward and dispassionate manner. Such sessions often include discussions of the potential “best and worst days” for each side, which can be helpful, if not critical, in presenting a basis upon which the mediator can build to assist each party in a risk analysis as the negotiations proceed.

For a complex case to be resolved, positions have to evolve and either one party or, more often, all parties have to change or alter their pre-mediation evaluations and settlement “bottom lines” to find an overlap. Such changes in preset evaluations seldom occur simply because the mediator carries one party’s position to the other party’s caucus room. Such a process is perhaps more comfortable, but it is not as effective in moving parties as are well-conducted joint sessions in which decision-makers have an opportunity to hear a moderated, controlled and non-incendiary discussion of the differences in the case.

Perhaps, as mentioned above, it is a matter of terminology. “Joint sessions” in which each side makes a rather formal litigation-style “opening statement” are not used as often as before, but initial joint meetings in which all counsel and decision-makers participate are never-the-less critical in most complex cases.

As for mediators’ proposals, Sharp and others have it right when they describe them as last ditch measures to be used infrequently and in certain intractable cases.•


John R. Van Winkle, of Van Winkle Baten Dispute Resolution, is a former chair of the American Bar Association’s Section of Dispute Resolution and author of West’s Indiana Rules of Dispute Resolution Annotated. This quarterly column will endeavor to highlight recent trends, hot topics, caselaw and other developments in mediation and arbitration. The opinions expressed are those of the author.

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