East Meets West: An International Dialogue on Mediation and Med-Arb in the U.S. and China
There's a new installment in CPR's 'Master Mediator' series - Rags & Me by Bob Creo.
'My own experience as a young lawyer representing my childhood friend in his divorce is my “mediator teaching story” that guides my approach to closing the deal.
Harry and Louise, college sweethearts, had a short and tumultuous marriage. I had barely opened my practice after only two years as an attorney, when Harry dropped into my office asking me to represent him in his divorce. This was much needed business for me as a storefront lawyer operating in a tiny office across the street from my elementary school...
I neither sign nor witness the document, but I offer to be named in it as a resource to engage in a med-arb process should there be unclear or missing terms in the drafting of a comprehensive, formal document. Most parties welcome my continued involvement and rarely do they return to me for assistance. I recommend that the parties consider submission of open matters to the court or to a special master to fill in any gaps or uncertainties' [read more]
In this second of two posts, I pick up last week's discussion around adversarial mediation and how sometimes, just sometimes, a mediator's reality is that parties with no prior relationship have few joint interests other than reducing transaction costs of getting to trial.
And how, in these types of mediations when parties find themselves at impasse, they put a high price on finality and often look to the mediator to be more like a judge and expect them to evaluate the likely outcome at trial.
And many will oblige - some of us will openly evaluate the case in some kind of non binding opinion piece, some will formulate a 'mediators proposal' just like in the recent Vancouver strike.
Some will even make a decision because they read somewhere that med/arb actually worked.
Others become boundary riders out on the edges of our field - and while remaining facilitative, will nevertheless be drawn ever closer to the confluence of the judge, the mediator and the arbitrator.
And it's in this unmapped extremity that many feel lives mediation's dirty little secret.
Not surprising really - what commercial mediator wants to own up to closing the gap by; > directing defendant parties what they are to contribute to settlement > getting parties' best offers on a scrap of paper and deciding how to split the gap > suggesting the parties put their money where their mouth is by betting on their trial predictions - so the party the most wrong has to pay $50,000 to the one who is closer > proposing a double blind range
For more try Jack Cooley's Creative Problem Solver's Handbook for Negotiators and Mediators, Volume 2 - just take a look at the table of contents put together from practitioner suggestions with descriptors like;
Michael Young: Bottom Line Negotiating
Kitty Grubb: Let’s All Go to Vegas with Kitty
Robert Wright: Wanna Bet?
Rebecca Bowman: Coin Toss
Snake oil or silver bullet?
We all use them.
Don't we?
In this piece I try to cover a topic in two consecutive blog posts which I would not normally attempt but for an important discussion at the recent LEADR conference in Wellington and continued across the Pacific a couple of weeks later at the IAM Portland gathering of commercial mediators.
There was much talk at our gatherings of the grim reality of what we commercial mediators do - as opposed to what we teach in mediation school and what we read as part of our continuing skill development (rehearsing in poetry, but practising in prose ).
That discussion in part was prompted by a presentation by David Hoffman in Wellington where he explored the boundaries and terrain of ADR practice. His think piece on this topic will be in the fall edition of ABA's Dispute Resolution Magazine.
David talked of adversarial mediation where parties have no prior relationship and few joint interests other than the reducing transaction costs of getting to trial -- insurance cases being the obvious example.
In such cases, he observed, if the parties find themselves at impasse they often look to the mediator to be more like a judge or arbitrator and expect him or her to evaluate the likely outcome at trial. And in my experience the uninformed sometimes going as far as requesting a med/arb process, upon which I have posted before.
And for many of us the reality is that much of our work is transactional -- transactional in the sense that the currency of the mediation is money and there are no real shared interests between the parties to be found, beyond identifying the savings of costs and an artificial calculation of the risks should they proceed to trial.
And I suspect many of us struggle with us -- we struggle with the parties’ positional negotiation style in such cases and with the notion that we are unable to identify shared interests beyond the above.
This reality flies in the face of all that we have learned and most of what we read.
And we resist it.
It's like Mediators are from Mars, Parties are from Pluto. We mediators try to promote interest based bargaining in the positional real world of money negotiation.
And because we resist it, our consumers - especially lawyers - block attempts to reframe money disputes into something they are not and will never ever be - an elegant interest based/problem-solving exercise.
They are, and will remain, traditional negotiation dances where proposal begets counter proposal begets proposal - often endlessly.
Until a few years ago I wrestled with this conflict. I felt that somehow great mediators would have found those interests within my mediations and would have found the mutual gain that was on offer, no matter what kind of mediation it was.
I was wrong. Real wrong.
Oftentimes, those interests are not there in the knockabout world of commercial dispute resolution and it is only about savings and risk.
As Andy Little says in his wonderful book Making Money Talk our role in money mediations is more about facilitating getting to best numbers - quickly.
And we should do that by;
First, facilitating the flow of information
"Do you believe in Med-Arb?" I asked a colleague today.
"Hell yes, I've even seen it done" she replied conspiratorially - as if we were talking about modern day witches or UFOs.
How such a bastardized process gets any traction in our wonderful profession is beyond me, but you be the Judge.
