Continuing the Mediation Journey
As we continue our journey along the mediation highway, I think it might be appropriate to look backward so that we can motor along. We have covered the topics of: using a mediation as a discovery tool, the mediation close to trial, and how trust established among those interacting in the mediation affects its outcome. In my front window, I see all of these having an essential thing in common, even beyond their place in mediations. In order to be successful, all of these approaches require a plan to be effective.
To create a plan for these kinds of mediations, one needs to understand the various roles of the participants in the possible session before one agrees to participate in such a session. I believe that the party who has the most control at the outset of the mediation process is the party who must pay, or do something to resolve the dispute. That may seem counter intuitive, but consider that the party who must pay (or do something for the dispute to be resolved) must decide whether it wants or is able to do what it must for the dispute to be resolved. If it does not want (or is not able) to do that which is required, then the mediation should not proceed. Think for a moment of all the settlement conferences and mediations you have attended where it is apparent that the acting party does not speak with one voice. Have any of these sessions lead to a resolution of the dispute? It is incumbent on that party to firmly commit to itself that it will act to resolve the dispute. Once this decision has been made, the mediation session can be scheduled.
My observation is that once this decision is made, that party has the control at the outset of the mediation. How it utilizes that control will determine how long it retains that control. Here is what I mean. If this party understands that it must act on its control during the initial phase of the mediation/settlement conference, it will compel the party who wants something done, or to be paid, to question how long it is willing to keep its demands in a range that the first party finds too high. This conundrum is highlighted in the difference between the mediation as a discovery tool and the mediation close to trial. In the former, the party from whom something is sought can exert its control most effectively because usually under these circumstances, time is on its side. However, the control may begin to shift to the other party once we move to the mediation just prior to trial. At that point, time may no longer be on the side of the putative payer/doer. That will depend upon how well the dispute investigation has gone for the payer/doer’s side.
To recap: the putative payer/doer has the control in the initial phases of the mediation/settlement conference if it acknowledges its vulnerabilities to its opponent and informs its opponent that it is willing to perform (within reason) that which its opponent wants it to do. The difficulty for the putative performer is how to continue to exercise control over the mediation/settlement conference as the pace of the back-and-forth proceeds. This is why it is important to devise a plan before engaging in the session.
Said plan must recognize which side has the control initially and how the control can be lost or gained because of moves made during the session which do not advance the plan. My next article will discuss the possible scenarios that may develop during the session.
-Tom Hogan, Retired Judge