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Mediation is a tool designed to be used at strategic times and for specific purposes. It is a process designed to facilitate a negotiated solution to a dispute. Mediation allows the parties to retain control of the outcome rather than relinquishing the power of decision to a judge, jury, or panel of arbitrators. The following is a summary of a caucus-based model of mediation.
Selecting a mediator with the right process skills is an important step. There are as many different “styles” of mediation as there are mediators. Some mediators are more facilitative, viewing their role as a facilitator of negotiations. Others more directive, preferring to direct the negotiations with a view toward evaluating the value of the claim for the parties.
Find out about your mediator. What kind of experience does he/she have? What kind of training have they received? How will the mediation be conducted? Will the mediator use joint meetings, private caucuses, or a combination of both? Think about what you want in a mediator. How much does the mediator know about securities matters? More importantly, is the neutral skilled in applying mediation techniques? Learn as much as you can about the environment and the mediator in advance of the mediation.
Have a private conversation with your mediator. Start to inform her about the case. Begin to work on your communication skills. Are you worried about having private conversations with the mediator? Unlike judicial or arbitration procedures where ex parte contact is prohibited, the essence of mediation (what helps a mediator work his magic) is the ability to speak with one party outside the presence of the other. The mediator, as a shuttle diplomat, can help the parties barter both information and settlement offers. A conversation with the mediator before the formal session can be very valuable in setting the stage for a successful negotiating session. Always be sure to confirm confidentiality of your communications from the beginning of the first conversation.
Spend time analyzing the case from different perspectives using the following suggested outline. A seasoned mediator will be exploring these areas during the mediation.
At this point, you have organized your thoughts and can now focus on your presentation and strategy.
Plan a negotiating strategy with your client. Think about appropriate parameters for settlement and the kind of information you need to influence your decisions. A mediation session may uncover new information and reveal different perspectives. Therefore, come with an open mind and a willingness to be flexible. At the same time, it is good practice to think about a negotiating strategy for your moves.
The mediator is condensing weeks or months of negotiation into a single day (mediation is sometimes called “Turbo-charged Negotiation”). Do not set your negotiating plan in concrete. Avoid setting absolute “bottom lines” with your client or “saving face” later can be a real obstacle to settlement. Remain flexible with the process. Never let the mediator control your side of the negotiation. You and your client are in charge. However, it is always helpful to consider an integrative or collaborative approach to the negotiation.
A great deal of the mediation training curriculum is negotiation theory and practice. Utilizing the paradigm of mediator as a “guest” at a negotiation, mediators must know about the process of negotiation to aid the parties.
We use an acronym, CAIROS, to demonstrate essential principles of interest-based negotiation:
“C” stands for “Communication.” Good negotiators ask themselves “what do we want to learn from the other side” and “what messages do we want to send to the other side.” Negotiators appreciate the importance of asking questions both to obtain essential information as well as to persuade the other side to “come about” in their thinking.
“A” stands for “Alternatives.” Good negotiators always focus on the alternative to reaching an agreement, or the consequences of a failed negotiation. What are the risks of the trial or arbitration? What might happen? Consider the whole array of possibilities and not just the “best case” scenario. What are the real and imagined costs?
“I” stands for “Interests.” Good negotiators look at the interests and needs of all participants in a negotiation. Collaborative negotiators avoid the tendency to focus on positions, which are invariably at opposite ends of the spectrum. Most people erroneously assume that there are only opposing interests at stake. In fact, there is often a great deal of commonality between the interests of the parties, starting with a common interest to negotiate a settlement and avoid the alternative. Negotiators build on common ground. Interest analysis leads to creative problem solving.
Everyone acts to some degree out of a sense of self-interest. How are the needs of the participants going to be satisfied? To the extent that an agreement addresses such interests, it is more likely to be acceptable and honored in the long run.
“R” stands for “Relationship.” Good working relationships are the key to productive interactions in negotiations, business, family and personal life. Negotiators ask themselves what can be done to improve the relationship? How can we create a positive working environment?
“O” stands for “Options.” Options generation is a creative process. True brainstorming involves a suspension of judgment. It requires abandonment of positional thinking, the ”either or” dilemma. We assume the pie is expandable, that we can create value.
“S” stands for “Standards.” Good negotiators look for objective external standards as a formula or rationale for their proposals. On what basis shall we decide? A search for standards is attempting to apply objectivity and fairness to a proposal, making it more palatable to the other side.
Of course not all elements of interest-based negotiation are present in every engagement. Experience has shown that a successful integrative solution is more likely to be achieved when these six factors are present.
The mediator’s opening statement is designed to set a specific tone and is likely to include the following:
The target of persuasion is not the mediator. The one who must find your arguments convincing is the party who must compromise their claim (or defense). It makes sense to address your remarks, with due respect, to the other party. Politely demonstrate that you mean business, that you will take this “all the way” if you must, but let them know that you are here in good faith to negotiate a fair settlement. This is not the place for grandstanding but it is an opportunity to communicate. Keep your objective in mind to negotiate in a manner that will ultimately lead to both parties agreeing upon a resolution. Be direct, concise, and clear.
When the opposing party or counsel has completed their presentation, ask open-ended questions to clarify any matters. Communicate to the other side that you understand their interests. There is a difference between understanding and agreeing. If you can articulate their perspective (and do so in their presence), you are closer to achieving a meaningful settlement.
Consider allowing your party to speak on his/her own behalf
Opening presentations are rarely waived. In some cases, where the emotional well being of the client demands or where an incendiary comment may torpedo the resolution process, the mediation may begin in private sessions (called caucuses).
This is primarily an “information-gathering” session by the mediator. The parties will have the opportunity to “vent,” if needed, in this private setting.
The mediator will use these sessions to create momentum toward settlement by refocusing the parties on: previous areas of agreement, their underlying interests, the underlying interests of the other party, option analysis, risk analysis and transmittal of reasonable proposals.
The mediator may give you assignments to work on between caucuses. You may be asked to explore the risk analysis in further detail and generate additional options for settlement that have not yet been proposed to the other side. As the caucus sessions continue, the mediator will build the momentum and assist in clarifying the common ground. Sometimes, the mediator will recommend a joint session to hammer out details.
The mediator may recall the parties to the joint session format if they have been in caucus to summarize essential terms of the agreement. Each participant will be asked if the mediator’s summary was accurate and whether they agree that the matter has been settled.
Ask yourself:
In order to avoid unanticipated problems occasionally created by “settlement remorse,” it is good mediator practice to have the attorneys/representatives and the parties sign a memorandum of essential terms if more detailed memorization is deferred because of the constraints of time or technology. While not always practical, it would be great if the final settlement documents can be executed at the conclusion of the mediation. Sometimes a memorandum of understanding is used to establish the framework for the final papers. Let the mediator stay involved until completion.
Mediation is here to stay. More and more negotiators and advocates recognize the special role that a mediator can play to bridge differences and bring about solutions. As confidante to both sides, the mediator stands in a unique position to assess the likelihood of settlement, and as facilitator of negotiations, the mediator can do more than the parties may be comfortable doing on their own. Mediation works! Effective advocates make the process their own.
JEFF Abrams is a nationally recognized mediators and trainers. He graduated from Florida State University School of Law in 1980. He have has actively mediating since 1986. Jeff was a pioneer in the ADR movement in Texas. He co-founded and then sold a highly successful mediation business in Dallas, TX (1986-1990), a training company in Portland, OR (1991-1996) and is now with the National Institute for Mediation and Training. He has successfully mediated over a thousand cases since 1986. In 1990, he received the Steve Brutsche Award for Excellence in ADR, presented by the Association of Attorney-Mediators. He acts as advisor on dispute resolution systems design for courts, securities organizations, governmental agencies, private and public corporations. He a published a highly acclaimed mediation training manual and several articles on mediation practice and mediation advocacy. Jeff is widely recognized as experts in mediation training, and has been a principal trainer for the NASDR in New York City and for numerous other corporations, governmental agencies and institutions.