Monday, January 21, 2008

The Mediator's Settlement Compass

One of the most unnerving aspects of mediation when I started as a mediator was the uncharted nature of the enterprise. I realized that I should not anticipate a settlement path, but rather should explore the conflict without any preconception as to what a settlement might look like, and let the parties' interests, needs, objectives etc emerge and blaze the settlement path. The question is to what extent a mediator may facilitate the settlement by gently pushing the parties to go in directions they initially resist. In other words, should the mediator use a settlement compass to select or change the direction of the settlement process?

Mind you, I use the analogy of a compass, which in my hand would always seem to jump and spin around as I moved in any direction, yielding a multiplicity of true norths. I wouldn't presume to invoke a mediator's gps, where one might plug in the conflicted start and settlement destination and call upon a detailed and certain route. Even a mediator's compass in a gps world would be a handy tool, were a mediator able to conjure it up.

Here are two thoughts to consider in conjuring a mediator's compass.

First, I believe that a mediator needs a detailed understanding of the parties' prior settlement activity, if any, before taking a first step. If there has been any prior negotiations, the mediator needs to understand what was said, how, when, and to what effect. In a case where there have been prior settlement discussions, the mediation does not really start with your arrival as mediator. After you have been briefed by the parties of prior discussions, which often can take place in separate pre-mediation conferences, the mediator may have a sense of a plausible first step.

Often, the mediator will ask parties to prepare separate mediation statements in advance of the mediation to apprise the mediator of the nature of the conflict, the alleged facts and the parties' pre-mediation view of the merits of their case. Often, counsel treat this simply as an opportunity to rehash their court papers, and the effort is truly worthless. A twist on this, especially if there have been any prior settlement discussions, is for the mediator to ask both counsel to collaborate and present a statement of the facts that are not in dispute, and even a mutually acceptable range of settlement values. Again, if there have been prior settlement discussion, a useful first step for a mediator is to ask counsel to identify what the parties can agree to in advance of the mediator's participation.

Second, in the case of a failed transaction, a mediator must learn what each party was seeking to obtain from the transaction. One reason the transaction may have failed is that the parties' objectives were not reasonable, or not as carefully thought out as they would have been had the parties known then what they know now. The perfect may have been the enemy of the good, or self-interest was overweaning. If a sensible end result can still be achieved, an end result which a party might not have rejected at the start if the party had thought of it then, then the settlement path can be made to look (almost) like just another fresh start, as opposed to the more distasteful attempt to clean up a failure.

Of course, one party may wish to move on, as the other party wishes to restart. In this situation, there is no true north path towards settlement.

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