By Abby Tolchinsky and Ellie Wertheim
August 1, 2007
Mediation is a “consensual dispute resolution process in which a specially trained neutral third party helps disputants to identify issues, clarify perceptions and explore options for a mutually acceptable outcome.”1
Within this broad definition three discernible methodologies have emerged: facilitative (sometimes referred to as directive); transformative; and understanding-based. Most mediators practice some hybrid, often borrowing from one another’s techniques and philosophical underpinnings in order to adapt to the needs of each set of clients.
Within these three different models, there are varying views of the role of the mediator, as well as the role of the law and of lawyers.
Before analyzing how each model of mediation incorporates attorneys, it is important to recognize that there are certain benefits to mediating that flow, fairly consistently, to attorneys and their clients, regardless of the mediation methodology. The most significant among these is control.
Mediation before a neutral facilitator allows an attorney to retain control of his case rather than cede decision-making to a third party (judge, jury or arbitrator). Also, mediation is a low-risk proposition: there is no material disadvantage if a resolution is not reached. In fact, participating in the mediation process and exploring settlement options yields a benefit of its own, regardless of outcome. Similar to discovery, mediation provides the opportunity to flesh out areas of mutual accord and to examine each party’s points of view.
What’s more, attorneys and parties are attracted to mediation because of its significant cost and time savings (avoiding a crowded court calendar), and because it allows them to craft resolutions that may take into account business or personal relationships that the parties wish to preserve. For example, in a dispute over assets of a closely held family business, parties may view the preservation of their business and familial ties as essential components of the negotiation.
So, how does each model incorporate the law and lawyers?
At one pole of the mediation spectrum, the facilitative model most closely resembles a business negotiation. The process actually begins prior to the first session, with the parties submitting statements of fact, and, at times, settlement proposals to the mediators. Thus, from the outset, the mediator has a substantive grasp of the dispute, both factually and legally. The first meeting provides the parties an opportunity to express – in each other’s presence – their view of the dispute, as well as to determine together the scope of the decisions to be made in mediation. The mediator will encourage the parties and their attorneys to participate in this conversation. While attorneys may be reluctant to allow their clients to speak freely in front of the opposing party, one benefit is the opportunity to evaluate the demeanor and credibility of the parties should they serve as witnesses at trial.
After the initial joint meeting, the mediator likely will spend the bulk of the mediation “caucusing,” or consulting separately with each side. In these caucuses, the mediator will ask the parties to offer an evaluation of the strengths and weaknesses of their case and ascertain their requirements for a settlement. The conversations that take place in caucusing are confidential only to the extent that the party requests. Otherwise, while speaking with each side, the mediator is free to impart any and all information he deems helpful.
The law is a key component of these caucuses in that the attorneys are present, and, at times, may even be mediating on behalf of their absent clients. Therefore, the mediator, by necessity, must be familiar with the relevant area of law. With this knowledge, the mediator teases out from each side where potential concessions lie, based upon the full understanding of how the law may affect their specific factual conflict.
Finally, in the event parties reach an impasse, and if they both so desire, the mediator may suggest a reasonable settlement for each side to consider. This suggested settlement may differ from how a third-party fact-finder might rule and is nonbinding; the mediator remains neutral as to the settlement the parties craft. Rather, the mediator’s evaluation will reflect the parties’ interests as expressed throughout the mediation process, as well as the mediator’s knowledge of the facts and the law. For example, in a wrongful termination dispute, an apology or a written recommendation may play a central role in attaining a settlement, a component a court would be unlikely to include in a final order.
Across the spectrum of philosophies, transformative mediation concerns itself primarily with addressing the emotional experience of finding oneself in the middle of conflict – feeling out of control, powerless, vulnerable and anxious. Transformative is a two-pronged process of empowerment and recognition. The first involves each party expressing his point of view of both the problem and possible solutions. Second, the mediator asks each party to understand the other’s point of view, thus recognizing each side’s view of the conflict. Rather than focused problem-solving, settlement is driven by empowering each party’s sense of self and thereby his responsiveness to the other. The law is outside of this empowerment/recognition framework; however, should the parties choose to refer to it, that is fine. The mediator will seek to facilitate the parties’ desire to learn and use the law only if they so desire. The mediator will be motivated to familiarize himself with the relevant area of law in order to facilitate the conversation between the parties, but will not provide legal explanations or guidance. In all respects, the mediator follows the parties; not the other way around.
Between facilitative and transformative mediation, is the understanding-based model. The mediator, who is often an attorney, provides the parties with a general understanding of how the law would view their conflict. In this model, it is less common for attorneys to participate directly in the mediation. Rather, parties may use consulting counsel at various points throughout the process. Consulting counsel provide an advocate’s trained eye in evaluating the deal being structured by the parties in mediation.
Particularly because the parties are unrepresented in the session, it is the mediator’s role to promote equal understanding and power between the parties. This may be accomplished by ensuring full and open disclosure of any and all relevant factual information as well as by referrals to outside experts, such as forensic accountants.
The understanding-based mediator is always concerned with identifying and correcting power imbalances in the room. While the parties are the fact experts, they are generally less familiar with the range of possible legal outcomes. Understanding-based mediators operate within the framework of the law and concern themselves with the parties’ ability to gain a full understanding of their rights and obligations under the law. As with the other two mediation models, the law may serve as a guidepost in the settlement negotiations. Armed with full legal information, parties are free to knowingly deviate from a litigated result and craft individualized settlements.
Litigators – endowed with an advocate’s bias – discuss strengths, weaknesses and strategies with their clients. Mediators – working in a neutral posture – explain, in the presence of both parties, the range of what a court result might look like. As in facilitative and transformative mediation, it is up to the parties to determine how, if at all, the law affects their negotiated settlement. In order to ensure that all choices made in the mediation process are fully informed, the mediator will refer the parties to outside counsel for consultation and/or document review. This added layer of legal advice further ensures that the parties are entering into a fully informed and considered agreement – one that is less vulnerable to modification in the future.
While litigators may bristle at the notion of parties advocating and negotiating on their own behalf, those clients choosing understanding-based mediation generally do so out of a desire to retain autonomy over the process and the results.2 Cases in which the disputants have a personal or business relationship lend themselves to this model precisely because it emphasizes and promotes empathy and understanding, thereby laying the groundwork to preserve an ongoing relationship. All this takes place while the parties operate within a legal framework. Since, outside of the actual sessions, they have the benefit of consulting with their own attorneys, the parties negotiate armed with important information such as their BATNA (best alternative to a negotiated settlement), and an appreciation of the societal standard of fairness that the law provides, as applied to their particular dispute.
By working effectively with lawyers – whether inside or outside of mediation sessions – parties seeking to resolve a defined conflict do so with the added protection and knowledge of the law. Where they choose to work creatively in their solutions, they are fully informed and confident in their ability to make lasting decisions. These mutually acceptable settlements, ideally, optimize each party’s sense of satisfaction with the results.
Abby Tolchinsky and Ellie Wertheim are partners at Family Mediation.
2. E.g., The Matrimonial Commission Report, chaired by Hon. Sondra Miller, was published in February 2006. http://www.nycourts.gov/reports/matrimonialcommissionreport.pdf. The report recommends mediation as an effective process for resolving parenting disputes in a divorce action, particularly because it allows parents to gain confidence and retain control in assessing what is in the best interests of their children. Specifically, the face-to-face facilitated negotiation between parents, outside of the presence of their attorneys, lends itself to detailed agreements that reflect the unique needs of each family and the potential for cooperative parenting going forward.