Sunday, June 15

The legal community has learned to accept low-functioning mediation

I have had a draft post sitting on my laptop for nearly 6 months now but I haven't posted it. I'm not ready to lose half my readers yet.

The working title is something like 'lazy mediators don't do joint sessions' or 'lazy mediators only meet in private'. I couldn't decide which one would offend least.

And it includes such pearls as 'joint is where we do our brain surgery - anyone can be a high-priced bellhop between rooms'.

I mean, it's not as if I haven't posted gently on this topic before; see In Praise of Joint Sessions.

At one stage, I even tentatively put forward a 'third mediation space' theory - a space with its own behaviours and protocols, in addition to joint and private spaces; see the Third Space (1) (2) (3).

'... Corridors can be furtive and risky spaces on mediation days – ‘don’t ask me to
cross the centre line, but I’m quite close to it’ kinds of places, ideal for short line ups of lawyers or parties. My technique has evolved quite differently in each of these three spaces – so differently I wish someone would legitimise the humble corridor encounter by giving it a fancy name and teaching a course on it.

Then more recently there was
the changing nature of the plenary session in mediation.

Now my colleague, Stephanie West Allen, has unknowingly forced my hand by kindly sending me an article by her friend and long-time mediator, Joe McMahon.

Moving Mediation Back Toward Its Historic Roots—Suggested Changes, published in this month's Colorado Lawyer, is possibly one of the most important, and I hope controversial, articles authored by a practitioner in the recent past.

And brave.

Well, you have to be to suggest that 'the legal community has learned to accept low-functioning mediation'.

Moving Mediation Back Toward Its Historic Roots does much more than just making the case out for joint sessions, but when Joe suggests that the bright line that historically divided the field is no longer along the facilitative/evaluative fault line, but now more about a "dialogue-based" versus "separation-based" rift, I got interested.

There are some who think that is what mediation is - a process where you show up at a downtown building but never speak to or even meet the room full of people with whom you have your problem and whose cooperation you require if you are to resolve it.

We know why some ('I don't let my client speak') lawyers resist joint - fear of the unknown, fear of the uncertainty and the unpredictable. Fear of a loss of control. And sometimes, as McMahon observes, 'a desire for anonymity in making very self centred proposals for settlement, relying on the mediator to convey the offer'.

But why some mediators also? Is it the same deal? - because we know it's harder in joint, and we know it's certainly uncertain and predictably unpredictable. Or is it a nod to the all knowing market?

Joe's article requires a response from provider organisations - time to defend your corner guys. Whether you like it or not, you are shaping our profession. And some of us don't like that shape.

After all, who employs the ex-high-stakes-litigators and the newly-retired-judges, and who sometimes promise telephone numbers, often to those without any experience in consensual models of dispute resolution?

'Perhaps it was error to frame the mediation debate of the 1990s as "facilitative" versus "evaluative." Instead, the debate should focus on "dialogue-based" versus "separation-based" processes.

It is important to consider why mediation may have diminished or even abandoned dialogue among conflicting parties. Doing so may have happened in response to market demand or in an effort to promote efficiency.

In some types of mediation, conflicting parties are separated and engage in little or no dialogue. That suggests the efforts and interventions of the mediator or facilitator must replace what would have been accomplished by dialogue. This places enormous power in the hands of the mediator.

If denial and avoidance are thought to be the most universal responses to conflict, it is important to consider whether separation-based mediation merely plays into and enables such a response to conflict. If so, it is time to evaluate whether mediation and facilitation were really intended to provide support for such denial...

Support for the market model of mediation ("the market knows what it needs and what it needs is the settlement conference") is claimed in the high settlement rates in commercial settlement conferences. However, a high percentage of civil cases always have settled, even long before mediation was in vogue...

McMahon asks of mediators; 'are you fully satisfied with the quality of dialogue among conflicting parties in the mediations in which you participate?'

What a wonderful question! In my case however, only occasionally.

As McMahon says, 'By broadly considering conflict and mediation, it may be possible... to move these processes back toward their historic roots—that being processes based on parties telling their stories in face-to-face dialogue aided by a mediator who can guide them to more effective communications.'

But why? If it isn't broke, don't fix it. Commercial parties are settling, users are not up in arms are they? Heck, it's them who ring and say 'we don't do joint'.

Well grasshopper, there is a reason we should all be concerned if a separation based model is to become the norm.

And it's not about resolution rates, because I suspect they stack up.

No, it's all about the the timbre and tone of resolution - but that's another post.


Anonymous said...

Gutsy post Geoff - this certainly takes the debate up a click or two

Anonymous said...

yes yes yes yes yes - but not a position-based joint session. That's where the process failed. Lucky me we can discuss this over dinner tomorrow!!

Anonymous said...

Thanks for this honest and thought-provoking post. I'll have to sit with it a bit before I respond in a more content-focused way. It may even take me six months!

Amanda Bucklow said...

Oh brave man! I also have a couple of posts which are still in the drafts folder for the same reason: my blog is even less established than yours! My recent articles have addressed the subject with a light touch!

I was in a meeting the other day with colleagues and we were talking about "customers wanting opinion/adjudication". I couldn't agree that anyone had made a case for it. The response was 'well it is what the customer wants". My unspoken reply was "which customers are you talking about?"

And I think this is the rub: mediators may have forgotten that the real customers are the parties and not the people who 'select' them. I know the market is competitive and mediators want lawyers to select them - of course we do. But I feel we are drifting away from the very principles and values that made us all so passionate about mediation in the first place and which also made it work.

And at the risk of instant death: one of those principles is that mediation is about restarting communication so that a deal can be done and if appropriate the relationship restored. How do you do that unless people have a conversation - together?

And the other principle which seems all but abandoned is even better expressed by Blaise Pascal (1623-1662) a mathematician and philosopher who said "We are usually convinced more easily by reasons we have found ourselves than by those which have occurred to others."
Pascal's father was a very well known judge in his time. I am curious if that had any influence on his thoughts about this.

Anonymous said...


Excellent thoughts. I love holding joint sessions in my mediations. I can't ever recall holding a mediation where I didn't start in a joint session. I've had clients who have refused to sit in the room with the other side and I've cajoled them to be in there even for a little bit.

IMHO, the biggest problem with only caucusing is that it perpetuates the problems you're mediating. The other side is very frequently demonized (yes, some transformative theory) and rarely humanized. It is far harder to deomonize someone when they are sitting there trying to explain their side in a rational manner (and they all have to listen!). It is no different than how people will say horrible things in an email which they would never say to a person's face.

Reserve caucus for the more private things that caucusing is supposed to be for...not shuttle diplomacy.

Incidentally, it is the attorneys who are theones who most frequently and quickly want to head into caucus. I think they miss a good opportunity to assess their own clients and how suitable they will be in a deposition or on the witness stand in trial.

It's also strange how divorce and elder mediations (which I also do in addition to commercial cases) rarely caucus. Resolution rates on divorces and elder mediations are generally higher than court-annexed commercial cases.

Anonymous said...

Err, the best mediator I know, one that I have to spend a good deal of effort to schedule with two months in advance or further, often skips joint sessions, purely because they just slow things down.

I consume a lot of mediation services, thousands of dollars worth each month. I don't pay for lazy mediators and I sure as heck wouldn't fight through the scheduling for the guy I'm talking about if I thought what he did was worthless.

Sandra Upchurch said...

Simply a great article and so timely for me. I just conducted the most wonderful mediation but I have to attribute its success to the attorneys. Both attorneys were willing to meet with me privately (without their clients present), both attorneys were willing to allow me to meet with their clients privately without the attorneys present and both attorneys were open to multiple joint sessions. It was a refreshing experience and one I hope to duplicate many times over in my mediation career. I owe it all to the open-mindedness of the attorney litigants. Bravo to you!!

Sandra Upchurch
Mediation Counsel
Upchurch Watson White and Max