Negotiation, An Essential Part of Our Society, Part II - Mediation

In preparation for writing this article, which follows my "Negotiation, An Essential Part of Our Society Part I" article, I thought back on my experiences on the knowledge, skills, and ethics that I acquired in law school, which also included a 40 Hour General Civil Mediation Training. The mediator and the negotiator play similar roles when dealing with parties in dispute. While negotiation is the process of two parties settling a dispute, mediation is the process of a third party proposing a solution which the parties choose to agree with or not. Mediation is the art of facilitating a negotiation by summarizing and translating concisely the emotional content into neutral and workable facts. I also pondered on how the mediation training was an extension of this art I practiced during my undergrad at Marquette University, where I pursued political science, and then at the University of Michigan, Ann Arbor, where I pursued philosophy. Specifically, the mediation process is similar to the writing process. Mediation and writing have similar constraints such as relevant subject matter, scope, cost, time, conditions which forbid certain content or impose a pattern. Therefore, writing and mediation are controlled mediums for self-expression with the goal of reaching an understanding with the parties involved.

In class, we were taught the mediation procedure acronymed BADGER. BADGER stands for “Begin the Mediation, Ask for and Acknowledge parties' opening statements, Develop the mediation agenda, Generate options, Exit to caucus, and Resolve the conflict.” The BADGER method not only helped our role plays to flow more efficiently, but it also helped to make our learning experience more enjoyable. This was because the material was divided into steps easy to digest and remember. In the same time, the BADGER method helped us to be flexible during the mediation when the participants behaved in unexpected ways.

Just as attorneys have to obey the competency and due diligence rules of professional conduct, negotiators and mediators have to do a lot of preparation before the mediation. Behind every great plan is a good knowledge of the history of the subject, or in the case of the mediation, of the surface dispute. This good knowledge comes from analyzing the written claims of the disputed parties. A great plan also consists of a good knowledge of mediation by knowing, among other things, why mediation in particular is the right conflict resolution process for the parties in dispute. Attorneys must advocate for their clients' underlying interests, and also be aware of the full array of benefits that the mediation offers so generously. This would require them to be mindful of what their clients' interests are, and make sure that their own interests are not influencing the clients' interests during the representation.

According to our General and Civil Mediation Training manual written by our instructors, mediation is: “A private, voluntary dispute resolution process in which a neutral third party, invited by (or acceptable to) all parties, assists the disputants in: identifying issues of mutual concern, developing options for resolving those issues, and finding resolutions acceptable to all parties,” (pg. 8).

Although we did not spend any time in the pre-mediation stage of the process during our role plays, our instructors highlighted the importance of this stage in our manual on page 30. They discussed how the more knowledge a mediator has of all the factors influencing the dynamics of the mediation, the easier it is for that person to remain impartial, and not to rely on stereotypes to guide the mediation process. Furthermore, our instructors explained that in order to obtain this knowledge, the mediator has to be curious and explore with the parties, and with their attorneys, if any, in a neutral manner, who will be going to participate in the mediation. A good inquiry would also be as to whether the disputants are going to bring supporters for emotional, or any other kind of support to the parties.

Another reason the mediator needs to be aware of who is attending is to assess the possible needs of unrepresented parties. Unrepresented parties need to have a more in detail explanation of the process due to the lack of advice of counsel. In the same time, the mediator has to be aware of the individual personalities, including that of the attorneys, and to know what type of attorneys are going to participate (transactional attorneys v. litigators).

Having a good understanding of the surface dispute also helps determine whether the mediation is going to center around negotiating numbers, or a renewal of a relationship, business or personal. Depending on the dispute, sometimes the mediator might feel it beneficial to consult with, or have a co-mediator with specialized knowledge of a certain subject join the mediation. For example, a social worker, a psychologist, an accountant, or an engineer could be a good expert to join a mediation. The same would be extremely valuable for an attorney to employ during a mediation or consultation with clients. And speaking of specialized knowledge, in particular, after reading “Advanced Guide for Mediators” by Susan Exon, I found that having some background knowledge of the physical and chemical makeup of the brain helped me to better understand how the “the brain impact[ed] 'evaluation, persuasion, and emotional regulation'” of the parties (pg. 403).

Since trust is the driving force of facilitative communication, the mediator has to convey the image of impartiality from the initial communication with the parties and their attorneys. During these pre-mediation conversations, the mediator discovers who has settlement authority, whether there is conflict of interest, which documents the attorneys need to work with, and whether there are any barriers to a settlement, (Manual, pg. 30-31). In my own professional life, working in a law office, I have often noticed how the attorneys' pay a special attention to the preparation for the consultation or mediation between certain parties involving the process mentioned above. It is then the attorney's job to look over the documents that the mediator prepared before the scheduled meeting of mediation. These documents are given to the parties to sign, in order to raise their confidence in the process and in the mediator's authority to ensure that their voices are heard. The pre-mediation agreements provide an overview of the mediation process, and establish the rules of conduct promoting mutual respect among the participants during the mediation.

On the day of the actual mediation, during the “beginning the mediation” stage, the mediator opens the discussion by welcoming the participants, commending them for agreeing to participate, explaining the mediator's role as a neutral third party, and clarifying the mediation process, including the purpose of a caucus. The mediator also explains the benefits of mediation compared to pursuing the dispute in court, explains the role of the attorneys, if there are any, acknowledges other participants and their roles, and reinforces the rules of confidentiality and respectful conduct during the mediation.

Forming one's own opening statement helps to better remember what is needed to be said as a mediator. The most important and helpful rule of conduct that needs to be relayed to the parties was that of not interrupting each other. This reassures them of their equal status in the process, and nurtures their trust, both in the process of mediation and in the mediator. It is also important for an attorney to make certain that their client is well aware of what to expect from a process of mediation, from the very beginning to the end, in order to make the client comfortable and welcoming of the mediation procedure.

The best way to learn something is by doing it, so I appreciated the opportunity to participate in the role plays because they would further help me in my future career, especially in improving my listening skills. Being a good listener requires focusing solely on what the person is saying, instead of on how to respond according to whatever comes out of a speaker's mouth. I engaged my listening skills the most during the second stage of the mediation, when I “asked for and acknowledged the parties' opening statements.” I needed to filter out the oral content, which related to the surface dispute, from the oral content, which revealed the deeper issues at the basis of the dispute.

During the second stage of the BADGER process was when "the parties [for the first time were] actually [listening] to an uninterrupted statement of the case from the other side's point of view, [and] it [was] the first time the parties and their representatives [had] an opportunity to provide a complete, uninterrupted statement of their perceptions of the case," (Mediation Principles and Practice, Kimberlee Kovach, pg. 163). The informal setting of a mediation, where parties are free to express whatever is on their minds, encourages new information to be introduced. This new information often inspires the parties to consider alternative ways of thinking about, or resolving their dispute.

This stage also provided me with the opportunity to practice my multitasking skills. For example, besides listening carefully to what the parties were saying, I had to also take notes concerning certain information which I thought needed to be explored further. I needed to think about how to reiterate what each party had said in their opening statement so that I conveyed to them that I paid attention to, and acknowledged, what they were actually saying.

After the parties made their opening statements, I posed specific neutral questions, as if I were a curious outsider. I had a similar role to that of a clarifier, namely, interpreting and reframing what each party was intending to communicate, all the while stepping into the footprint of the party (Kovach, pg. 45). Asking open-ended questions, such as the ones suggested by our assigned readings, e.g., “what happened?,” or “can you tell me more?,” helped to identify any confusion, and address misunderstandings (Manual, pg. 65, 66). They also helped to identify, as well as undo any hidden assumptions that were driving the dispute. This involved eliciting new information, and offering an objective perspective in such a way as to make the parties feel convinced that the process was led by them, and that the resolution came from their mutual understanding of the dispute.

All the work completed during the “asking and acknowledging the parties' opening statements” stage of the mediation helped to develop a mediation agenda, and transition the process into the third stage of the mediation. As an attorney, given a mediation situation, helping the client identify issues in this stage of the process should be key in promoting confidence and trust of the clients in this alternative to a court lawsuit. Solidified in writing or on a board for the clients to see the issues is a very helpful procedure to follow. Also, by having the issues framed in neutral language, in writing or on the board, would help the clients to see the progress made so far.

During the fourth phase of the mediation, after the parties were made aware of the deeper issues at the root of their dispute, I learned how to, as a mediator, “generate options and negotiate flexibility through persuasive techniques,” (the class syllabus). I think that the most difficult part of practicing this part of the mediation process was “avoid[ing] pushing [my] own recommendations or solutions, or cross-examining the parties,” (Manual, pg. 20). I was surprised at how the questions offered in our manual, which I posed later on in our role plays, helped generate movement in the discussion.

Some examples from our manual on page 86 were, “If you could take this back in time, what would you do differently?,” What were your intentions/motivations?,” What do you see happening next?,” What is the other side thinking about this now?,” What is one thing you like or respect about each other?,” Help me understand how you've contributed to this situation,” “How do you want things to improve?,” What would it take for this to work?,” and “What is a solution you could live with?” I find this particular way of questioning extremely helpful in getting to the root of the dispute resolution in order to facilitate an interest in reaching a resolution to the dispute at hand.

When sometimes the fourth stage hit a snag during the role plays, it was because the parties reverted back to focusing solely on their individual interests, and letting their negative emotions take over the discussion. When that happened, it usually was a good indicator to transition to the fifth stage, or the “exiting to caucus or separate meetings” stage. The mediator then suggested to the parties to go to caucus, or the parties or their attorneys decided to go to caucus in order to explore settlement options in a confidential setting. The caucuses allowed the mediator to encourage the parties to be more candid and helped the parties to visualize the dispute reaching a possible settlement, or if they were not there yet, to go over the information that they may have just passed over and not explored in depth.

Once the parties come out of the caucus knowing whether an agreement looks like a feasible resolution, it is time to proceed into the fifth stage of the mediation process, which is the “resolution,” and the drafting of the final agreement stage. The writing of the final agreement would constitute the successful end of the mediation process, and a great financial savings for the client who participated in the mediation process. Our Mediation Principles and Practice book on pages 346-350 provides a lot of good information about the agreement-writing phase of the mediation and the pages 351-384 provide a lot of good real-life case examples. These pages described a multitude of types of agreements which depended on whether a lawsuit was pending.

The note taking, which is an excellent practice, is important not only for memory recollection in general, but especially during the agreement-writing phase. A mediator, negotiator or attorney can write quite elaborate notes and describe details that can be used at any time to preserve a record, in particular of a mediation and/or a dispute. Such notes would be of tremendous use during the final agreement writing phase in case the parties would forget certain important details. A written agreement is “usually in outline form, in simple straightforward language, laying out what the parties have agreed to do. The agreement may even include lists,” (Kovach, pgs. 347).

Although not all mediations result in mutual agreement of the dispute presented, mediation is considered the most efficient way to resolve any disagreement between two or more parties. Sometimes, the process of mediation ends in partial resolution, and the rest of the dispute may further continue in a court of law. However, considering the amount of time spent and the financial demand on the parties, the mediation is the best conflict resolution that can be achieved in the shortest amount of time between conflicting opponents.

The mediation class made a great point in emphasizing that a mediator has the duty to promote ethical behavior during the process of mediation, as well as in his or her entire career. Confidentiality, in particular, was also emphasized as paramount to protect when dealing with dispute resolution. Clients as well as the disputed parties, have the right to protect their private information, and they also control how much of that confidential information may be disclosed to the other party, or to the mediator, during the process of mediation.

As important as confidentiality as a top priority, being courteous, also facilitates a better dispute resolution. I believe everyone that we come in contact with enriches us all. This is a feeling that was nurtured in my own family. I grew up in a family with a tradition in public service, which required them travel around the world and speak a lot of languages. It was a great pleasure and understanding of the world for them to meet all kinds of people from all kinds of backgrounds, from every race and ethnic origin. We learn from every person's history and experiences, which ultimately helps us understand people who come to us and need our help, as well as helps us better negotiate mutually beneficial agreements, or better resolutions of disputes. As Mark Twain has said “travel is fatal to prejudice, bigotry, and narrow-mindedness," so is knowledge and therefore understanding, is fatal to the same.

Consequently, because negotiation is an essential part of our society, I intend to continue practicing these principles I grew up with, as well as the skills I strengthened in school, throughout my employment, and my life, as a negotiator, law graduate, fellow United States citizen, and fellow human being of our one and only planet Earth.

WORKS CITED

Kimberlee Kovach, Mediation Principles and Practice, 2004

Dale Iverson, J.D. & Anne Fifer, J.D., General Civil Mediation Training, 2014

Susan Nauss Exon, Advanced Guide for Mediators, 2014