John R. Van Winkle: Mediation and the exchange of positions

Over a decade ago, premier mediators Tracey Alen and Eric Galton noted with alarm the growing trend away from joint sessions, away from a joint exchange of positions.

They wrote in Dispute Resolution Magazine: “Many of us have wondered what the mutant child of the marriage of law and mediation might look like. Now we know: deconstruct the process and turn mediation into the more familiar settlement conference.”

Tracey and Eric spoke for a substantial percentage of experienced commercial mediators in urging mediators and advocates to become “promoters” of a return to an important process component; an exchange of positions and the resulting opportunity for a meaningful risk analysis.

Ten Years Later: No Change

Fast forward ten years, however, and instead of a return to interactions, whether conducted initially or at some point later in a mediation, the joint exchange has moved from endangered to basically extinct.

Robert A. Creo, a long-time leading arbitrator, mediator and author, wrote of this current reality and related process dynamics in an important article published this month in the CPR journal: “My view is that the most prominent example of parties weakening the efficacy of mediation is the elimination of the joint sessions.”

Creo follows with a reluctant acknowledgment, now commonly accepted among mediators: “Alas, I confess that the resistance [to joint sessions] is often too strong for me to return to my traditional way of substantive opening sessions….”

He then joins the voices of Galton and Allen and many others, urging mediators, while accepting the market dictates, to adopt their practices to preserve the critical dynamic of the exchange of positions.

Creo, discussing the tension between a mediator’s view of best practice and the strongly stated preference of the parties and advocates, wrote: “I contend that the mediator ‘owns’ the process but defers and modifies procedural elements upon appropriate input from the parties. The mediator is responsible for implementing a fair and equitable process…”

As Creo and others maintain, this important role and authority of mediators to control and protect the process of mediation is supported and even buttressed by the current status of mediation as an integral component of the civil justice system, no longer conducted in the shadow of the law but more than ever now “in the context of the law.”

Opportunities

How, then can mediators conduct a mediation in a manner that respects parties’ preference but still presents meaningful opportunities for a robust exchange of positions?

First, at the outset of the engagement, many commercial mediators have individual telephone calls or virtual or in person meetings with each side to discuss the case generally and identify specifically the extent of the parties’ respective familiarly with each other’s views and positions on the dispute.

These calls often lead to another pre session opportunity of furthering understanding, the exchange of all or a portion of the mediation submissions.

Secondly, at the session, even if the initial joint meeting is the currently common “meet and greet”, most mediators will find numerous opportunities to get at least one or two of each party’s representatives together in hallway conversations or side bars to discuss discreet issues.

While these exchanges are valuable, it is suggested that another type of exchange can involve more of the participants and lead to a more intensive discussion of the main disputed issues. Although it appears artificial or contrived, one mediation session technique mimics the dynamics of focus groups, mock trials and similar “one way mirror” type engagements.

It is suggested that mediators arrange for and facilitate a joint meeting in which one side presents its arguments and positions on certain issues to the mediator, with the other side merely observing.

Experienced mediators recognize the difficulty presented when a party wants to make arguments in support of its position to him or her, with the expectation that he or she can then effectively transmit the information to the other side. It does not work well.

By conducting a session in which the presentation is directed at the mediator, while the other participants listen and observe without comment, as if behind a one-way mirror, a major component necessary for a risk analysis can be accomplished.

To be effective, the mediator will need to fully explain to all participants the “rules” of the exercise; one side will engage in a dialogue with the mediator while the other side simply sits in the rear of the conference room, deferring any questions or comments until subsequent meetings or perhaps a subsequent similar, but reversed session.•

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John R. Van Winkle, of Van Winkle Baten Dispute Resolution, was a participant in the founding and was the second chair of the American Bar Association’s Section of Dispute Resolution. Opinions expressed are those of the author.