I Have a Dispute to Mediate -- Should I Use Artificial Intelligence as My Mediator?
We are all hearing about artificial intelligence—the exciting ways it can process a lot of data quickly and the troubling ways it can use bad data just as easily as good data, as well as create “hallucinations” based on misperceiving what are facts and what are not.
Still, with its reported efficiency and accessibility, one might wonder whether trying AI as a neutral to resolve a dispute might be better than using a human mediator. AI does not appear to possess some skills, however, that seem essential to serving successfully as a mediator -- at least not yet.
Lack of Empathy - AI cannot understand and empathize with emotions. Often in a dispute a party first needs to feel heard and understood about why the dispute exists before the party is ready to discuss solutions. Part of being able to consider the other side’s perspective and considering compromises, is first having confidence that one’s own perspective is heard and appreciated.
Thinking Inside the Box - AI works on predefined algorithms. Although we can input facts to get AI to develop options, AI may not be able to think outside of those defined limits, to ask further questions to understand whether a fact not yet shared might expand potential solutions to a dispute.
Limited Creativity - AI has also been shown to be less creative than humans. Hence, while all the information and issues presented in a dispute may have been presented in monetary terms, for example, only a human mediator might consider a completely different means of settling the dispute -- such as an apology and some collaborative endeavor that hasn’t been explored yet and benefits both parties. This solution might be something that was only raised by one party’s off-hand comment during their discussions. AI might have dismissed the comment as irrelevant.
Can’t Build Trust and Create Calm - another aspect to a successful mediation is often that the parties trust the process and the mediator to protect the process. Often a party is comforted by the mediator’s commitment to stay with the parties until they have explored all viable solutions to their dispute, for example. AI is unlikely to make such a commitment. Sometimes, it is simply the calm and confident demeanor of the mediator that allows a person to stay calm and focused and consider the other party’s ideas, thereby leading to a settlement. At this point, I doubt an AI mediator would generate that kind of calm and focus in a party.
What Happens to Confidentiality and Privilege? - There is also another concern with using AI as a mediator: the potential for risk to the confidentiality and privileged nature of the process that is otherwise available to mediating parties in the U.S. and other countries. Disclosure of information to AI may lead to waiver of those rights because AI generally uses the information received as data for improving its process. It integrates the information into its database. This “disclosure”, if authorized by the parties, may be viewed as a disclosure to a third party waiving all rights to protect such information and to keep it from discovery in a court proceeding in the unfortunate event that the mediation fails. Courts will no doubt be evaluating this issue around the world; it’s a concern for now.
So should we completely forget about AI? No. It can be useful in a mediation. A mediator and the parties can use AI to develop options, sort data, and organize issues, for example. It can also help locate outside information the mediator seeks (since it is built into most search engines nowadays). Perhaps one day AI will be a better choice, but for now, a human mediator, equipped with AI, seems the better choice to resolve our human differences.
Mediation Can Help You Outswim the Sharks.
When I was a little girl and other little girls were playing with dolls, I was dictating letters to an imaginary secretary, parroting no doubt, my father‘s actions. When I started my undergraduate work, I still assumed I would be taking over my father‘s manufacturing company and took the necessary business administration classes in accounting, economics, industrial psychology and management. In law school, I actually liked my classes on the UCC, corporations and partnerships, and business. All of this background was very useful in my work as a judge on civil commercial cases. To this day, I enjoy reading the business pages in the newspaper and especially Harvey Mackay’s column, entitled Outswimming the Sharks. His recent article in the Minneapolis newspaper was especially relevant to my current work as an alternative dispute reolution professional working on commercial disputes.
His column focused on the importance of compromise in business decisions. (His entire column in Minneapolis StarTribune, February 19, 2024 can be found here.) I had many commercial cases while on the bench and have conducted at least as many commercial mediations. All mediations are eventually about compromise. As Mackay points out, when you compromise “... No one gets everything they want and be prepared to come to a different outcome than you had originally considered.” That is good advice that attorneys should heed and be sure to give to their clients before mediation.
Mackay is astute in pointing out that one should also “recognize when not to compromise“ and to never compromise “at the cost of honesty or integrity.” As in all mediations, “it is knowing your nonnegotiables, and being clear about what you are willing to give up.” That is very important in mediation and are key points for good lawyers to clarify with their clients ahead of any mediation. In commercial mediations, I always explore the possibility of whether the parties are likely to be doing business with each other in the future. This is often the case and calls for a special approach to the mediation and the final settlement, It also introduces creative possibilities for solutions. Many business relationships are ongoing. As an example, in construction cases, many of the same subcontractors are used routinely, particularly on very large, multi-phase projects. Also, companies that manufacture goods are often working with a limited number of suppliers. These and many other businesses continue ongoing relationships, even after the flare of litigation. They can and should reach settlement to maintain those on-going relationships. Mr. Mackay also recognized this dynamic.
Good lawyers will also tell their clients to follow Mackay’s sound post-mediation advice. When the parties compromise and these cases settle, Mackay recommends they “ spit out the sour grapes, and instead look at the fruit of their labors.” This is good advice for all involved who want to continue being successful in their business. At a certain point, one must focus on the future, no matter how frustrating the past.
Safety in Mediation
Mediation is almost always less combative and much easier on the parties than the adversarial nature of a trial. That is not to say that it is unusual for some people to become disgruntled during a mediation. They can be angry about the first demand or the first offer of the other party, for example. Often parties unfamiliar with the process can become frustrated at the time it takes to reach resolution. It is just human nature.
Unfortunately however, there are times when someone becomes so angry that safety of the parties, lawyers or mediator becomes a concern. This can come up unexpectedly in many different kinds of cases. For example:
There may be an elderly litigant being bullied by a close family member into settling the probate of her sibling’s estate and one becomes concerned about the possibility of more serious elder abuse occurring in her home. This situation prevents an uncoerced voluntary decision .
Just as dangerous is a situation in which one of the parties is a victim of domestic abuse and the abuser is actually in the room, pressing the abused to settle the case, involving perhaps an accident. Because of fear of the abuser, the abused’s decision to accept or deny an offer is not totally voluntary.
A party may be present for “support” of a spouse in a sexual harassment case with a claim against the spouse’s boss. It becomes painfully clear that the “ supportive spouse “ has an explosive temper. This is often directed at the mediator if the “ supportive spouse”can not bully his or her way to what the bully deems to be an acceptable settlement.
Each of these situations involves a person with what has been called a “high conflict personality”, creating a potentially dangerous situation.
Because its hard to reason with someone when they are in a highly agitated state, the mediator, lawyers and other parties must handle the situation carefully . They must first ensure their own safety.
Keeping everyone apart as much as possible is much easier if the mediation is held online. Everyone can be put into separate rooms, virtually. This remains a problem however if the highly aggressive person is in the same room and sharing the video screen with the affected party. The mediator must then take control of the situation and make sure that any settlement is truly made voluntarily.
If the mediation is in person, everyone should always be kept in separate rooms, physically far from each other, even on different floors, if available. If, however, the agitated party is a family member or friend of the affected party, the mediator can ask the non-party “ supporter” to step out of the room for a few minutes so the mediator can talk directly to the affected party to determine how best to proceed. It is the affected party’s case and self determination of the party should be determinative. The lawyer should be of help as well.
If there is a fear of someone potentially having a weapon, the mediator or the attorney may be able to contact someone in the courts or elsewhere (for example, a library) to secure a couple of conference rooms for the mediation at a location where people must go through a metal detector as they enter the building.
Every situation is different. How to handle it best depends upon the target of the aggression. It is still possible to have a successful mediation, however, in most instances. A mediator can help defuse the situation if they have been trained in how to handle a “ high conflict personality”. Under most circumstances there are ways to deal with these situations so the mediation can continue and be successful. Still, safety must be the top priority. If it becomes too dangerous, the mediation can and should be adjourned. This is definitely the exception and not the rule, but it is important to think about ahead of time and develop ways to handle matters, “just in case.”
Mediation Takes Too Long and Is Very Costly -- Fallacies about Mediation
Not long ago a friend complained that his lawyer was pushing him to resolve his business dispute through mediation. He said it would take forever and cost too much money. A relative who was going through a divorce thought that mediation would be a free way to resolve things and that it would take less than a day. How can these views be reconciled? What do people really think – or know – about mediation? How often is it confused with arbitration?
Simple facts about mediations:
Although not free, it is still the best way to resolve disputes in a cost effective manner. Still, it is important for clients to understand that they will have to pay not only the fees of their attorney, but also pay for or share the cost of the mediator.
Mediation may last more than a few hours, but it is efficient. Although most mediators will set aside most of a day for the actual mediation, there are many instances when the matter will not resolve and the mediator will continue to try to settle a dispute for days or weeks. Typically though – we are not looking at a mediation that last years.
The parties decide their own fate. Unlike arbitrations, the mediator does not render a decision. As previous blogs have pointed out, whether the parties decide to resolve their dispute is totally in their own hands. No one – not the mediator or the attorneys or even the court where the matter is pending – can force parties to settle.
Attorneys should be prepared to explain what a mediation is, and the pros and cons – and costs – of a mediation. Attorneys should not assume that even sophisticated clients understand the intricacies of mediations.
Just a Little Bit of Respect - How Acknowledging Cultural Differences Can Be Key to Successful Mediations
Good mediators know just how important it is for parties to respect one another to be able to resolve disputes. When there has been a dispute, respect often no longer exists between the parties. It is important for counsel and the mediator to make sure that at least for purposes of the mediation the parties are respectful of each other 's positions and respectful about the business or person with whom the parties are negotiating.
Counsel for the parties may also have differences with opposing counsel or the adverse party. All of these differences need to be set aside before mediation. Counsel need to help their clients understand this.
It is also important to understand how culture impacts one’s perception of respect and what is expected. One must ask oneself, what considerations must be taken into account? It is important to understand the value systems of all involved.
Although respect is important in a domestic setting it is even more important when one of the parties is from another country. For those counsel who have represented foreign parties, you know how vital it is that customs are followed. Even in a domestic setting it is important to show respect, for example, to someone who might be older or to someone who has a key role in a company. In an international settings small and large moments can really matter. This encompasses everything from where people are seated at a mediation, how people greet one another, whether in person or by zoom, how business cards are presented and how people are addressed.
In her series of books Kiss, Bow or Shake Hands, author Terri Morrison provides advice on cultural differences to businesses who are conducting global operations. The State Department issues guidance on dealing with different cultures for its employees who are stationed around the world. We have also offered guidance in an earlier blog post: Context Matters; Avoiding Missteps in Cross-Border Mediation. There are many resources to aid counsel in how to recognize what constitutes respect and to be able to advise his or her client appropriately. Recognizing cultural differences and the importance of respect is key to a successful mediation.
Dealing with “Difficult” Parties
Have you ever been in a mediation when one of the parties rushed into the session and started complaining about everything that had gone wrong that day – and then seemed to be carrying that frustration into the mediation session? What about a party that starts out with saying that he really doesn’t believe in mediation or that settlement is possible and, although he is “of course” willing to participate, he really doubts it will be of any use? Perhaps you’ve experienced a situation when one of the parties in a mediation doesn’t seem to speak at all and, even when asked a direct question, remains silent and turns to her attorney to speak on her behalf? Or you’ve experienced a party’s attorney who offends other parties by re-explaining everything anyone says to his client and what his client says to everyone, as if they cannot understand for themselves.
Lisa Savitt and I recently had the pleasure of presenting on the topic of dealing with “difficult” parties like those above at the International Association of Lawyers (UIA) 31st World Forum of Mediation Centres in Frankfurt, Germany. It was a lively discussion among the attendees, with so many willingly offering insights from their own experience. Lisa and I and our co-panelist, Javier Fernández-Samaniego of Madrid, Spain and Miami, Florida, also offered some suggestions about how to approach such situations. We reminded attendees that the key goal must be kept in mind: helping the parties explore all potential solutions to their problem – not to change the way one party or another behaves.
We pointed out that “difficult” behaviors can arise from several sources:
Emotions – Someone is afraid, anxious, frustrated, etc.
Dynamics between Parties – The history between the parties makes it difficult for them to come to the table with an open attitude.
Strategy – A party thinks some disruptive behavior can show strength or shake up a party or situation.
Legal Traditions – Behaviors can be linked to the parties’ roles and behaviors they think are expected of them based on their backgrounds.
Cultural Differences – “Rude”, “difficult”, and “disruptive” behavior in one culture can be seen as relatively normal in another. Maybe the actor is just acting in a way that would be entirely appropriate in another culture.
We also shared some of our tactics for addressing such situations to make sure that unwanted behaviors don’t destroy a mediation:
Prepare ahead of time to anticipate differences in legal traditions and cultural differences. It may mean that pre-mediation sessions will take some extra work to develop a strategy to discuss these differences or perhaps deciding it is appropriate to keep the parties separated rather than having joint sessions.
Listen, listen, listen! Try your best to determine what the source of the behavior really is
It’s not all about you! - Remember that such behaviors may have nothing to do with you.
Remember the importance of self-determination. If this situation really raises concerns for someone, for one reason or another, is it appropriate to continue and/or does something or someone have to change for this to work?
Explore the source of the behavior with the actor.
Consider whether this is your problem – maybe your own background makes you hypersensitive to a behavior that doesn’t bother anyone else.
Consider your own ideas about the source of the behavior and test that out.
Consider ways to address the underlying source (rather than the behavior itself).
Consider ways to ask the actor to modify the behavior – the actor may not be able to change emotions, but can change actions.
Inquire with others about the effect on them, recognizing they may be more or less affected than you are.
Assess the ability to mitigate the impact on others to get the mediation back on track – can it work or does this end the prospects for resolution?
Next time a mediation includes a “difficult” party – we hope that all attendees at the conference and our blog readers feel better prepared to face the challenge and move ahead towards a positive outcome.
What!? Isn’t What I Said in Mediation a Secret?! - Part 2
In our last post, we spoke about the scope and sources of confidentiality and privilege. Today we will talk about the consequences of breach of those limitations.
CONSEQUENCES OF BREACHING CONFIDENTIALITY
Even if a party confirms that confidentiality protects information disclosed in mediation, the party also needs to understand what would happen if the obligation were breached. Courts have different views about what makes a party whole if a breach occurs. For example, the remedy might be some kind of compensation. Some jurisdictions, however, see money as an inadequate remedy for non-monetary harms. That may mean no adequate remedy would be possible. In other jurisdictions, the remedy might be some kind of order by a court to do or not do something to try to undo that harm or at least do no further harm. Some courts, however, do not have the power to compel or ban conduct. Another potential remedy might be paying over to the harmed party any benefit the disclosing party or recipients of the information gained by disclosure. This is more punitive in nature – seeking to undo the benefit realized from the breach, rather than seeking to undo the harm. It is therefore important to ask what would happen if a party didn’t abide by its commitment to confidentiality in the state, country or other jurisdiction where that breach is likely to occur.
CONSEQUENCES OF BREACHING PRIVILEGE
Privilege is held by the disclosing party in most instances, but in some jurisdictions, it is held by the mediator instead. It is therefore wise to confirm who holds the privilege to refuse to permit disclosure in one’s mediation and therefore the right to waive it. It is also important to know what is required to waive it (to make sure one doesn’t waive the right unintentionally). Often the privilege is asserted when the other party tries to compel disclosure of information shared in a mediation. In that instance, the party with the privilege can refuse disclosure and prevent a breach by objecting. Arguing over such issues, however, costs money and time. Hence, even in jurisdictions where the privilege exists and is clear, and where a party knows how to avoid waiving it, protecting against disclosure can be time consuming and expensive. Some mediation parties therefore talk at length with legal counsel before a mediation to decide just how much essential information to disclose in a mediation.
If you gain only one thing from reading these posts on confidentiality and privilege, it should be to do your homework before relying on any statement that a mediation, and what you share in mediation, is confidential.
What!? Isn’t What I Said in Mediation a Secret?! - Part 1
One reason I like mediation is because it allows the parties to agree on a solution to their dispute that works for them. This requires some level of candor with one another about what’s really at the heart of the dispute. To promote that candor, most legal regimes promoting mediation protect the information shared in a mediation from disclosure.
Those protections can vary by jurisdiction and if more than one jurisdiction is involved, the application of those protections becomes even more complex. This post will explains the sources and types of information that are protected.
PROTECTIONS FOR INFORMATION
You might think disclosure is disclosure, but that’s not necessarily the case. Rules protecting information from disclosure are categorized in two basic ways: confidentiality and privilege.
Confidentiality – Confidentiality means that information won’t be disclosed to anyone else. This protection is useful if a party is concerned about damage to reputation or the loss of value of proprietary information is shared broadly. Reputational concerns often arise in family disputes or other personal legal matters. Proprietary information protection is usually a concern in a commercial dispute. Just think what would happen if Coca Cola’s recipe were shared with the public, for example.
Privileged – In contrast, information is privileged if a court cannot compel disclosure in a legal proceeding. Suppose a party wants to admit some responsibility for a dispute, wants to acknowledge that the dispute isn’t solely the fault of the other party, that they both played a part in the controversy’s escalation. Suppose the party wants to apologize. This admission and apology might allow the other party to move beyond their differences and agree on a settlement. But the party who is thinking to make such an admission may be concerned it will be given too much weight by a jury or judge hearing a dispute. The disclosing party therefore may not want to admit any such responsibility without knowing the statement is privileged – that it cannot be discovered in any later court proceeding.
WAYS CONFIDENTIALITY/PRIVILEGE IS PROTECTED
Disclosures of confidential or privileged information are prohibited and/or prevented in different ways, in different legal systems.
Scope and Source of Confidentiality - Most agreements to mediate include an undertaking by the parties not to disclose to anyone else what is said in mediation. Generally, if the parties agree to keep something confidential, that promise will be honored. Some jurisdictions have also adopted specific mediation laws providing that the parties in mediation must not share disclosures outside the mediation, with only very limited exceptions. Even so, it is important to be clear about the scope of such confidentiality. Documents that already exist before mediation typically aren’t made confidential merely by mention in a mediation and documents prepared for a mediation may or may not be treated as confidential. Also, some information just isn’t protected from disclosure. For example, if a party admitted to abusing a child, then certain individuals, such as social workers, must report that abuse. Threats of violence often aren’t protected either. A party to a mediation therefore needs to understand both what’s covered in such an agreement or law and what exceptions might apply.
Scope and Source of Privilege - Laws, regulations, court rules, court decisions, and ethical rules all will often address what evidence can be shared in court. Depending on the nature of what a court wants to consider as evidence in a dispute and the type of dispute involved, these laws, rules and the like can vary significantly. Some courts limit evidence to what the judge requests and the judge, as a custom, may not ask for any information from a mediation. In the U.S., some states have adopted the Uniform Mediation Act, which has a broad prohibition of use of information from a mediation in court, with very specific exceptions. Those specific exceptions relate to such things as threats of violence, intent to commit a crime, or concealing on-going criminal activity. Other courts, including many U.S. jurisdictions, allow broad submission of evidence, but then expect the judge or jury to weigh the evidence to decide what’s relevant. As a result, those U.S. states often have specific procedural rules about when and what type of information from a mediation can be shared. They rely on evidence rules that tend to be more nuanced and subject to dispute about the types of evidence from mediation that can be shared or will not be admitted, as compared to the Uniform Mediation Act. Some have questioned whether those evidence rules apply to a mediation that isn’t required as part of a litigation process, as well. The scope of privilege has become a complex enough issue in California that, as of 2019, the state requires a mediator to provide all parties to mediation with a specific notice about the evidence rules governing information shared in mediation to make sure the parties understand the limits on what cannot be discovered and what cannot be used in testimony/court proceedings.
I’ll provide more information on the consequences of breaching these obligations of confidentiality and privilege in my next post. Stay tuned!
101 on Mediation for Non-U.S. Clients
A client from another country may never have participated in, or even heard of, mediation as an alternative dispute mechanism. Many will be familiar with arbitration and may believe that mediation is similar to arbitration. Besides informing the client about what mediation is and how mediations are generally conducted, it is important to also explain the benefits of mediation. If there is pending litigation in the U.S., the client has already been briefed on the U.S. legal system, including some detail about the discovery phase, which does not exist in most non-U.S. jurisdictions.
HOW IS MEDIATION DIFFERENT FROM ARBITRATION?
The client should understand that mediation does not result in a decision of the matter on the merits and the mediator is not the “Judge.” The client should not be expecting that the full case will be presented during the mediation. Most importantly, each party should be agreeing to the mediation with a true desire to resolve the dispute.
WHAT ARE THE BENEFITS OF MEDIATION?
Mediation is a lot less costly than arbitration or litigation. If a settlement is reached at the mediation, or even afterwards with the help of the mediator, the case is over. There is no waiting for an arbiter or judge or jury to issue a decision. There also is true finality because there is no basis for appeal. There is no decision to appeal because only the parties determine the outcome of a mediation; the parties agree on a settlement or they don’t agree on a settlement. That is all.
WHAT WILL HAPPEN IN MEDIATION?
It is also important to explain to non-U.S. clients the various forms that mediations might take. For example, the mediation may be remote or in person. The parties may start together in the same room and counsel may even make some remarks. There will have to be someone with full authority to settle the matter appearing for all parties. The client should be told about “shuttle diplomacy” as the mediator goes back and forth between the parties. Also, clients should not worry if the mediator takes a short or long time with a party. Definitely stress that whatever is communicated to the mediator is typically to be considered confidential unless the client gives permission to the mediator to use certain information in speaking with the other party. Remember that this is likely to be a client’s first experience with mediation. Informing the client about the process beforehand to avoid surprises will definitely increase the likelihood of success.
CONSIDERATIONS FOR NON-U.S. CLIENT
Lastly, be sure to have an interpreter at the mediation if the client is not fluent in English. Misunderstandings about what is being proposed or agreed upon can be serious. Cultural differences should be taken into account as well, not only as to the client, but as to the other parties as well.
Using Written Word to Avoid Failure in Mediations
When I was a transactional attorney, I cannot recall how many times I heard a client say they had reached a deal with a counterpart only to later learn that the deal wasn’t as firm as they thought. This most often arose not from bad faith but from the intent of one party being different from what was perceived cross-culturally by the other party. From that, I learned how to help clients make sure such misunderstandings didn’t occur and those tactics hold true for avoiding misunderstandings in mediation too. One key tactic is to recap in writing any key points to a mediation as you proceed.
Why?
“Why is that?” you might ask. First, sometimes a party in another culture will use a gesture (such as nodding) or phrase (such as “yes”) that suggests the party is agreeing when in fact it just means the party is listening. Second, many people have stronger skills in writing than they do in listening or speaking in a non-native language. Third, many parties have to report to their higher-ups and it is useful to have something in writing to make sure they’re reporting the discussion accurately. Fourth, it can’t hurt. That is to say, I have never heard any party object to an effort by the other party to make sure they are understanding what is being proposed or conveyed. The time is well worth the effort. Positions are clarified and the parties do not waste time pursuing inconsistent terms.
What?
“What should you recap?” you might ask. First, be sure you understand what the key issues are in a dispute from the perspective of the other party. If, in an opening statement, they have shared some insight on those points, it may be useful to recap those points in writing. If a party has made a proposal and you’re considering it, you should recap the proposal to make sure you understand it. If, on the other hand, the other party has explained that it objects to your proposed settlement, you may recap the reasons the other party gave, so you can then address those objections one by one. Finally, once an agreement is reached, recapping the key terms before anyone drafts a settlement agreement is useful. Doing so will often help trigger additional logistical questions about settlement terms that can be hashed out before anyone puts pen to paper to draft a settlement agreement itself.
When?
“When would a recap be useful?” you might ask. As the above discussion about written recaps suggests, written recaps can be useful at the early stages of a mediation or even before a mediation if pre-mediation briefs are shared with the mediator and the mediator is seeking to understand a particular client’s real objectives. Recaps can be helpful to keep negotiations on track at key points during a mediation. They can be useful to make sure the parties have agreed on a settlement when they think they have a deal. In sum, consider the utility of a recap at regular intervals if the parties are from different cultures and definitely to verify the terms of any settlement agreement before it is fully drafted.
How?
“How detailed does the recap need to be?” you might ask. The less wordy a written recap is, the better, when the person reviewing the recap is functioning in a non-native language. Complexity, detail and length vary, however, depending on the settlement terms. The key is to present ideas in plain language, with short, simple sentences, even if that makes the document longer. Outlines or bullet points of terms are advised, in contrast to long narratives. It is best to avoid more than one settlement term per sentence.
Who?
Who can use this tool? As a mediator, I have used periodic written recaps to make sure all the parties are tracking one another. I have also seen both parties or their respective legal counsel use written recaps to make sure there’s no disagreement OR to clarify where disagreement lies. Anyone who is concerned that the parties might miss a settlement opportunity due to miscommunications, should use this tool to increase the likelihood of a successful mediation.
Give it a try; I think you’ll like it!
Help Your Mediator Help You - Preparing for Mediation
Your mediator is here to help you! Still, your mediator needs your help too. It is a collaborative, not an adversarial relationship. That’s one advantage of mediation over trial. All sides want what’s best for their clients, and argue for that, but in a mediation the mediator is the neutral “in between” who needs to have an ability to listen and accept various points of view and a grasp of the parties’ motivations, personalities, and wants—as opposed to needs, in addition to an understanding of the facts of the case.
So how can you help your mediator help you?
Promptly send back any forms such as your mediation agreement, signed by all parties required and their attorneys - The mediator will not begin any work on your case until having received a properly signed agreement that includes an agreement to the mediator’s fees and an agreement to abide by the rules of mediation, as required by statute, court rules and/or treaties.
Be available for any pre-mediation calls - These are important calls between just the attorney(s), client(s), and the mediator. They are important for both the mediator and the parties as an informal get-together. They give the client a chance to meet and get to know the mediator, making the mediation itself more comfortable. These calls give the clients and attorneys a chance to ask questions about the process, test their equipment, become more confident in the confidentiality of the process (whether a virtual platform or otherwise), when invited to talk with the mediator or attorney in a private room. They are also very important for the mediator to get to know the attorneys and the clients. The mediator has an opportunity to consider the clients’ feelings about the case and to see if they are inclined to negotiation, or resolved to go to trial “no matter what” — whether they are passive, frightened, tending to explode, resolved, or otherwise.
Promptly answer and return the mediators pre-mediation requests for information - It is very helpful to the mediator to obtain answers to questions such as:
What is the theory of your case?”
“Have you discussed settlement with the other side?”
“What is the last demand or offer made for settlement and by whom?”
The answers to these questions will help the mediator know where to start the mediation and save time.
Send the mediator copies of the complaint, answer, any prior important relative motions made to the court and the court rulings - These items will help the mediator to know which issues are in dispute and which issues have already been resolved, allowing everyone to move forward without rehashing anything, risking the opening of old woods and covering old ground, thus making the actual mediation go more smoothly.
Be prepared and help the mediator prepare by sending copies of the most important cases, statutes, treaties or rules, either as attachments or by use of links with your mediation statement explaining your position - Sending this information ahead of time to the mediator allows time for review and preparation and clarifying questions, if necessary.
By helping your mediator to properly and adequately prepare for your mediation, as well as get to know the attorneys and clients informally, your mediator can better and more efficiently help you successfully get your case settled in a timely, cost effective, and less adversarial manner.
Starting Off on the Right Foot
It is surprisingly easy to jeopardize a successful mediation before the mediation even starts. Demanding a joint session can be risky. An attorney may want to appear as an advocate for his or her client, to show that the client is being zealously represented. That may help the lawyer’s relationship with the client, but it may jettison any chance of success at resolution of the dispute.
That’s especially true in cross-border mediations. Cultural cues and understandings are a bit more subtle but just as key in making sure all parties maintain a desire to reach a resolution. Here are some tips to making sure you don’t ruin the mediation before it has even started:
If a mediation is in person and involves people from another culture, find out ahead of time what is an appropriate greeting. For example, will shaking hands – something we take for granted in the U.S. – be the acceptable greeting? In some cultures the greeting is in the form of a bow. In other cultures shaking hands with someone of the opposite sex is forbidden. Besides creating an awkward moment, doing the wrong thing can be offensive.
Find out about any important business customs. In Asia, for example, the manner in which you present a business card may be just as important as having a card to present. And it is not just providing the card with two hands, as many have seen in films. An important aspect of this greeting is taking the time to look at the card and to acknowledge the information on the card. Likewise, seating a person in the appropriate location at a table may be an important sign of respect. If you’re the one arranging for the space, make sure you discuss seating ahead of the mediation.
Make sure you know of any physical needs of participants. Offering some self service coffee, tea and water may be customary in the United States, but in other places more may be expected. Attendees may have special dietary or medical needs, as well. Planning for these in advance of mediation shows consideration and will allow everyone to be comfortable, increasing the likelihood of success.
Set the tone with your appearance even virtually. In the new day of remote mediations, how you appear “on camera” sets a tone, just as it would in person. Certainly business attire is appropriate; but consider your background, as well. If you can blur the background or make sure it is a professional setting – not your kitchen – you show that you take this process seriously, that you and your clients are serious about resolving the dispute. If the mediation involves parties from another country with a very formal court system, this will be vital.
Help your client understand the opportunity that mediation presents and how it fits in the process of resolving the client’s dispute. If your client is from another country, make sure you explain the role of the mediator and the Judge and the difference between them. There are many countries where mediation is not offered as a form of dispute resolution, or mediation is limited to consumer or family issues. Mediation can be different in format and function. Helping your client understand what to expect will help your client feel confident, in control and focused on resolving the dispute instead of spending energy trying to figure out what’s happening.
Discuss your clients’ goals, concerns and expectations. Planning ahead of time and asking questions will best serve your clients and at least keep the door open to a possible amicable resolution.
Context Matters – How to Avoid Missteps in Cross-Border Mediation
Sara Sandford and Lisa Savitt recently shared some of their tips for avoiding missteps in cross border mediation at the Union des Avocats International/International Association of Lawyers 30th World Forum of Mediation Centers conference held in Malaga, Spain. The interactive program focused on understanding the impact of cultural differences and legal systems on mediations. Lisa and Sara shared tips, including:
Working with clients to understand their and their attorneys’ expectations regarding the mediation style and format.
Preparing for the mediation by studying cultural differences among the countries of origin of the participants, which could impact:
Goals – solution/relationship
Attitudes – win/win or win/lose
Personal Styles – informal/formal
Communication Style – direct/indirect
Time Sensitivity – precise/casual
Trust – how it’s demonstrated
Emotionalism – high/low
Form of Agreement – specific/general
Agreement Process – bottom up/top down
Team Organization – one leader/consensus
Risk Taking – high/low
Format of Mediation – formal/informal
Developing strategies for how to help rebuild trust or confidence, when someone unwittingly disrupts the flow of mediation by a misstep.
In addition to knowing the issues and parties’ stated objectives, mediators have to understand the basic legal regimes of the matter being mediated. They also need to understand and plan for the conscious and unconscious expectations and attitudes brought to the table – particularly when there are substantial differences in how parties might approach dispute resolution and decision-making. Lisa and Sara explained how essential it is for mediators to help the parties anticipate these kinds of challenges in advance of a mediation so missteps don’t derail a mediation that could otherwise be successful.