What is mediation? It’s a “Plan B” . . . an alternate path – – a different route for resolving disputes.
When successful, it often is because it has engaged the parties in a search for a “win-win” solution. It doesn’t require a judge, a jury or a courtroom.
Parties engaging a mediator put in motion an informal way of working through the problems that led to their dispute. A skilled mediator is a trained professional who excels at leading this process. A mediator is not a judge. His or her sole aim is to help parties reach a settlement of their own. This requires listening skills, empathy, a calming demeanor, analytic acuity, forcefulness at times, and persuasiveness in use of the spoken word. There are a variety of styles among mediators. Most have in common a few core methods.
First, with all parties and counsel present in the same room, a mediator has each party describe the issues and what is at stake. This puts a rough composite agenda on the table.
Second, often, is the use of the “caucus” approach. A mediator in most (though not all) cases will encourage each of the parties, in turn, to “caucus” privately with him or her. While this would violate rules governing conduct of judges in court and in most arbitrations as well, it is permissible and is often well-suited to promote success in the more informal setting of a mediation.
Note: The “caucus” is a distinctive feature of mediation. It gives the participant a chance to explore issues with the neutral mediator in a relatively direct, intuitive manner with an assurance of confidentiality. The caucus can serve to bring emotional topography into relief as the parties let their guard down a bit. At the same time, it gives the mediator a chance to float ideas the other side may have proposed — free of the baggage that would attach if the idea was attributed directly to the other party.
Caucusing can enable the mediator to see things “in the round”, and to form an analysis of where the parties’ interests may actually converge. This convergence of interests may transcend the parties’ initial stances, and open doors to resolving the dispute. In the unstructured setting of the caucus, the mediator (and counsel) can often help the parties to form a more informed and therefore realistic appraisal of the costs and benefits of various courses of action. This can be a huge plus.
These are steps on the road to a different — and more shared — assessment of the situation. That journey can be transformative.
Third, the mediator can join with the parties in the work of identifying pragmatic solutions that may have eluded their attention. “Thinking outside the box” is not only allowed, it is encouraged. By contrast, a judge would be severely limited by formal written pleadings and motions.
Last but not least, ultimate control remains in the parties’ hands. They are free to disband the mediation at any time. Yet, if they succeed in working out a settlement through mediation, it is more likely to reflect their priorities than if they had handed the case over to a judge and jury of 12, or even to a panel of arbitrators, any of whom will have been strangers to the business and the relationships at issue.
In short, mediation offers a forum for bringing resolution to conflicts in a way that is individualized, comprehensive and cost-effective. This truly is a language we all would do well to speak.