In my last post, I discussed the three core approaches to mediation (facilitative, evaluative, and transformative) and mentioned two more (narrative and directive).
Which is my style?
I’ll answer this question with a metaphor. In the film, “Way of the Dragon,” Bruce Lee is losing a fight to Chuck Norris. Lee relies on one style, but it’s not working. Norris dominates him. But then Lee switches to a completely new style, unfamiliar to Norris, and Lee dominates him (the clip is here).
Like Lee, I do not rely on any one style – I use the style that matches the case, the parties, and the lawyers.
Often, this means a mix of every style.
No matter what the conflict, each side has its own perspective, positions, and interests, and each side believes the other side has an unreasonable perspective, position, and interest. Each side wants a resolution most favorable to their side. And, despite their own efforts to resolve the case, they have reached an impasse.
I enter the case at this point.
I begin every mediation before we meet by reviewing the party submissions, which I require. When I review them, I am looking for zones of agreement and apparent disagreement; positions and interests; and potential solutions.
We always begin in a joint session, with everyone present. After I explain the process and the opportunity before us, I walk the parties through the zones of agreement, making sure we already have these agreements established so we can focus on the disagreements.
I then ask the lawyers to discuss their cases, with all clients and stakeholders present. I’m looking to begin a dialogue. I’m also looking for where the true conflict lies. Often parties have missed where they actually disagree.
Next comes a mix of approaches, depending, as noted, on the situation. I may spend a lot of time listening, exploring, and asking follow up questions. I always involve the client, because it is their case (except when counsel wishes to speak in private). These discussions are always confidential.
If the parties are unaware of the opportunities for them to create value, I help them see better. If they are looking for predictions on the strengths of their case, their opponent’s case, a decision on a dispositive motion, or a trial verdict, I give my opinion. I help them understand my reasoned bases for these opinions.
I seek to guide the parties to their best solution, which sometimes means helping them understand their interests and likely outcomes. Depending on the dynamics, I shift from joint session to caucus. Sometimes I meet with just one counsel. Sometimes I hold another joint session, maybe with everyone, maybe just with the lawyers.
I understand there is an emotional process at play and I tend to it.
We always reach a moment of impasse. The parties came to me at an impasse and we mediate until we hit the second, inevitable impasse. I expect it, embrace it, and have ways to break it.
I know that a strong-armed solution is less satisfactory than a self-directed solution. I do not believe, as I was told twenty years ago, that the best settlement is the settlement both sides leave unhappy. The best settlement is the one both parties accept as fair, just, and reasonable.
I always close with a joint session and a clear statement of the agreement. After everyone leaves, I do a personal debrief. Where was my approach right, where was it wrong, how can I improve?
And then I move on to the next conflict.
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