Thursday, February 28, 2008

Mediation Quality Task Force (Case-by-Case Customization)

I have posted on the American Bar Association's Section of Dispute Resolution Task Force on Improving Mediation Quality report and its first finding, Mediation Preparation, here. In this post, I will review and comment upon the report's second finding, Case-by-Case Customization. Surprisingly, the report seems to assume that mediation customization is easier said than (I have found) done.

This portion of the report starts with a plea for mediator flexibility and customization of the mediation to the particulars of the conflict.

"Customization is the element of preparation that involves planning a mediation process tailored to the needs of the parties and the dispute. According to focus group participants, the timing of the mediation, exchange of information before the session, and whether to have opening statements, are all elements that can be customized to each dispute. One participant in our first interview group complained that mediators too often handle their cases with a “cookie cutter” approach. Many others voiced essentially the same sentiment, and praised flexibility as a quality desirable in mediators."

The report goes on to mention the question as to whether to have counsel make opening statements as the most important element of a mediation that may be customized to a conflict, by either having opening statements where it is thought that each side needs to communicate to the other side the strength of the case or its necessary objectives, or by omitting opening statements where they could be too inflammatory and counterproductive.

I believe that opening statements are almost always useful, and I have omitted them only when the parties have confirmed to me that they have had substantial prior settlement negotiations; in such a case, the parties usually want to try to pick up where they have left off, reviewing what progress had been made or not made and why, on the theory that an opening statement will only rehash old ground.

Perhaps the most important customization issue, as far as I am concerned and which the report does not discuss, is the extent to which caucuses are to be used. As an ideal, I believe caucuses should be minimized if the parties are comfortable discussing their interests and objectives openly, and are able to listen to the other side carefully. If a mediator is able to limit caucuses solely to the private consideration of options and valuation of proposals, promoting careful consideration before a suggested deal is proposed or responded to, the mediation can take on an active rhythm that creates its own momentum, and caucuses can become productive. If everything is to be done in caucus and the mediator becomes a shuttle diplomat, the mediation becomes a torpid affair and the parties loses whatever effectiveness they might have had to engage and reconcile with each other.

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