I always ask for a written mediation brief (or mediation statement) when convening and conducting a mediation, and I always suggest that it be shared between or among opposing counsel in advance.
From experience, however, I know that attorneys in the community in which I mediate (Southern California) will, more often than not, send me a confidential brief “not to be shared with the other side” or “for the mediator’s eyes only.”
When that happens, I receive all of this good information, but because it is “confidential” there is nothing I can do with it to help the parties assess their risks (unless I obtain further express permission – which might be grudgingly given later if at all – to share the brief or some of the information in it).
I read all of the mediation briefs that come to me. Most often, there is no reason that I can perceive why any of it should be kept confidential.
Usually, these mediation briefs contain factual statements and legal arguments that the other side really should consider – because it will be different from their own.
Thus, I think it is really helpful for each side to know what the other side perceives about the case in order to assess the attendant risks if that other side prevails.
On the other hand, if there is something truly private, that only I as mediator should know, I recommend a private side letter. See, https://karpmediation.wordpress.com/2014/01/11/being-candid-and-the-almost-never-used-side-letter/
Otherwise, let’s share so litigants, their counsel, and insurers when participating, can know and understand what they might be facing if settlement does not occur.
David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com
What is the definition of “success in mediation?”
Is it “getting the deal done” or is it something else?
Such a question arises from time to time, in mediation and elsewhere.
Most recently the question arose for me while I was participating in a Continuing Legal Education course on Mediation Ethics.
The tension exists as between the commercial aspect of “getting the deal done,” on the one hand, versus the defining cornerstone of mediation – self-determination – on the other hand.
On occasion, I have heard mediation participants call the mediation “unsuccessful” when the dispute does not settle then and there at the mediation.
When this occurs (yes, parties do sometimes choose not to settle at a mediation if it is not right for them at the time), my response usually goes like this:
“You know, the dispute still may settle but later as a result of the mediation or if circumstances change. If not, I think the mediation was successful nevertheless, in that each side learned more about the other side, about themselves, about the predicaments they face and about the possible solutions. It may be that the chosen solution ultimately is to commence or to continue with litigation; yet, so long as it was an informed decision, to me the mediation was successful.”
My awareness of our ethical responsibilities as mediators forms the basis of this response.
Standard 1.A. of the ABA Model Standards of Conduct for Mediators (2005) provides:
A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.
http://www.americanbar.org/content/dam/aba/migrated/2011_build/dispute_resolution/model_standards_conduct_april2007.pdf (hereinafter “ABA Model Standards”).
See also, Rule 3.853 of the California Rules of Court [“CRC”] [“A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties.”]
In addition, Standard 1.B. of the ABA Model Standards states, and I think this is important:
“A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.”
So, defining “success” as “getting the deal done” may not be the best definition.
CRC 3.853 (2) and (3) also say this:
“[A mediator must] [r]espect the right of each participant to decide the extent of his or her participation in the mediation, including the right to withdraw from the mediation at any time; and … [a mediator must] [r]efrain from coercing any party to make a decision or to continue to participate in the mediation.”
So, for me, if people have made an informed decision — either to prepare and sign a settlement agreement, on the one hand, or, alternatively, to terminate the mediation and depart on the other hand –, the mediation has been successful either way because the participants have decided for themselves.
Thus I define success in mediation as “informed voluntary decision-making” and not necessarily “getting the deal done.”
Of course, if they settle at the mediation, that is an extra bonus for everyone.
David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .
The Valley Bar Mediation Center (VBMC), a 501(c)3 IRS approved not-for-profit organization, deserves to be recognized for its salutary goals of educating the public about the benefits of mediation.
It was founded by the San Fernando Valley Bar Association (https://www.sfvba.org/default.aspx) about a year ago and is still a hidden gem for the public and for the legal community.
According to its website, VBMC’s goals include, among other things:
• Providing educational resources to help communities learn how to resolve disputes in a peaceful manner; and
• Increasing access to justice by offering professional, experienced mediators to help individuals, businesses and organizations in the greater Los Angeles area to resolve disputes without having to enter into litigation.
As to educational resources, VBMC seeks outreach via speaking engagements with community organizations, professional organizations, businesses, trade groups, even youth groups, school groups and the like, to spread the word about mediation.
(This is my personal interest in committing my time to VBMC, by the way.)
Also, VBMC plans professional training in maximizing the use of mediation and even in becoming a mediator.
A list of VBMC’s affiliated independent mediators, with their professional areas of emphasis, is available on the VBMC website at http://www.valleybarmediationcenter.com/mediators/ .
Through VBMC, each such mediator agrees to provide lower cost access to dispute resolution services in accordance with the goals of VBMC, i.e, where the emphasis is on underserved, underprivileged, lower income populations at any educational level.
Each mediator also agrees to contribute his or her time to VBMC’s educational goals.
So do not hesitate to contact VBMC as a valuable resource for speaking engagements or other offered educational opportunities.
VBMC welcomes your inquiry. The contact page for VBMC will be found here: http://www.valleybarmediationcenter.com/contact-us/
David I. Karp is a full time independent mediator of real estate and business disputes in Southern California (who is also on VBMC’s panel of mediators). His professional website is at http://karpmediation.com .
I see an image of him every day.
He is in the family picture on the shelf
That I see when I view the nearby clock,
Which is all the time and every day.
He smiles at me with that certain smile
That says, “I am happy and content;
I am with my family.”
Indeed he is, because he is in our hearts.
Maybe it is a smirk on his face which says,
“I know more than you think I know about this or that.”
Indeed he did know;
He was the smartest man I ever came across.
Or is it an expression of amusement,
Or kindness and understanding?
Because he shared all of that with us
And with everyone.
Whatever thoughts he had
When the picture was made,
He continues to share with me,
For he was and is my cousin, my friend,
And my memories of him are timeless.
Would you return to mediation if the first session does not yield a settlement then and there? This is a puzzle for many.
There are many reasons why the first session may not end in agreement:
My colleague and friend, Jan Frankel Schau, ruminates about the Zone of No Possible Agreement and suggests that people might walk out of the mediation session if the other side’s posturing causes its demands or offers to be stubbornly and unyieldingly outside the Zone of Possible Agreement.
Thus, Schau recommends, and I don’t disagree, that if the offers or demands are outrageously too low or too high and if there is no likely movement or flexibility, there is no reason to stay and waste time on a futile negotiation.
There, it is an appropriate strategy to end the mediation session with a walk out. See, http://schaumediation.com/secure/wp-content/uploads/2014/04/NOPA.pdf
There are other reasons as well, about which I have already written, where the first session of mediation may need to stop before resolution: e.g., if there is a looming litigation event that should occur first (demurrer, summary judgment motion, deposition, pending written interrogatories or document requests) and if the mediation was scheduled beforehand and perhaps prematurely due to a judge’s request or a contract provision. See, https://karpmediation.wordpress.com/2011/06/22/starts-stops-and-ripeness/ .
There are other, more personal reasons as well for mediation sessions to end without resolution, because things happen in our own lives:
For instance, while conducting a mediation one day, I received a call from a hospice nurse caring for my father A”H who said, “David, you need to come see your Dad, now.”
Sometimes, a child of one of the litigants gets sick and suddenly needs a ride home from school.
Or a litigant herself falls ill during the course of mediation.
These things do happen from time to time.
In most cases, the frustration is palpable among the participants, of course, as the mediation session is interrupted and ends prematurely.
But is the mediation over?
Wisely, people can and do reschedule a second or subsequent session of mediation sometimes. They pick a date and put the new session on calendar while we are all still together.
Ah, but does it stay on calendar?
Not always, and this is the hard part.
I have previously written about the analogy I use, that people are like rubber bands. See, https://karpmediation.wordpress.com/2013/07/11/imagery-in-mediation-the-rubber-bands/ .
Thus, in the same way as when one let’s go of a stretched rubber band, when the tension of the mediation session is released, people sometimes go back to original positions if the mediation session is interrupted or ends without an agreement.
The momentum is broken, they become entrenched once again in their dispute, and that is the risk.
So, it takes enthusiasm, optimism, and a good dose of salesmanship sometimes, to encourage people to resume the negotiation on a different day.
Maybe this comes from the mediator, but more likely it is the litigator, as good counsel for his or her clients, who needs to be the cheerleader for mediation to resume … and for resolution to continue as a possibility.
Sometimes that is a Sisyphean task when the client wants to re-engage in the litigation war.
But if the opportunity arises to remind the client of the possibility of a mediated resolution, the client should be so reminded … if, as Schau suggests, there is “room for flexibility” in the negotiation, and a willingness on both sides to reach a tolerable outcome.
David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .
I am not a religious person, but I do look to Jewish tradition for inspiration sometimes, as in this, my 200th post! on this blog.
Now, as we do every year, we are approaching the Jewish High Holy Days and the Days of Awe (Yamim Noraim). The Days of Awe are the days between Rosh Hashanah (The Jewish New Year) and Yom Kippur (the Day of Atonement).
“During this period, individuals examine their behavior over the past year, consider atonement for misdeeds, and seek a closeness with God. Practically, this is done through repentance, reconciliation, and forgiveness.” See, http://www.reformjudaism.org/preparing-high-holidays .
In the month of Elul, which precedes Rosh Hashanah, we prepare for what follows. On the Saturday night preceding Rosh Hashanah there is a beautiful religious service known as Selichot. (The word Selichot is also used more broadly to refer to penitential prayers said during this time of year.)
Selichot means forgiveness, which is so central to this time of year, and also to mediation (in many cases, not all).
In mediation, I come across people who are caught up in the anger, outrage, regret, embarrassment, defensiveness, etc. etc., of their conflict, and usually they blame the other person/people in the dispute for their predicament.
Without help, they cannot see past this to get to settlement or to any resolution of their dispute, or to peace.
Many times the lawyers can and do help with this, but their focus is not always on the human/emotional component of the conflict but instead generally, not always, on the legal points and authorities they bring to the table.
The trained mediator sometimes can help. I try my best, with empathy, an attentive ear, and nonjudgmental sincerity, among other things.
By way of example and not limitation [that’s a phrase I remember from law practice] …
In dealing with anger, sometimes I try to speak about a quote attributed to the Buddha, or maybe to someone else, that goes like this:
“Holding on to anger is like drinking poison and expecting the other person to die.”
I then also talk about forgiveness when appropriate.
In a book (I forget which one) that I read by Kenneth Cloke, who writes extensively and perceptively about conflict and dispute resolution, Cloke refers to forgiveness this way:
“Forgiveness is giving up all hope for a better past” or words to that effect.
I like that a lot.
It points out the two things I see as most important in forgiveness, and in getting to the resolution of a dispute in mediation where the emotional blocks that include anger, retribution, revenge, and so forth, are present.
They are: Acceptance and the Ability to Move On with one’s life.
In the Days of Awe, Jewish tradition focuses on looking inward, examining ourselves, our circumstances, our actions, our deeds and misdeeds, our foibles and mistakes, and then doing something about all of it: repenting, reconciling, forgiving.
(We do not only forgive one another; we can and do forgive ourselves as well).
To accept the circumstances of one’s own situation, within the context/process of mediation, is also to allow one to forgive himself or herself, and/or the other person/people, in order to move on with one’s life.
In the mediation context too, looking inward can be most helpful and productive, if people will go there. (They don’t always.)
But it will take the time and patience of all concerned for this to happen, if it will.
David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .