Mediator’s Moment – Before You Mediate
By C. Jean Stewart
After serving for 16 years as the Presiding Judge of the Denver Probate Court, I resigned in 2011 to start a private practice providing neutral services to litigants and lawyers who confront conflicts around wealth transfer, fiduciary liability, estate and trust litigation and family dynamics. My practice here at Holland & Hart’s Fiduciary Solutions practice group includes mediation services. Some of my experiences in mediation remind me that all processes are only as good as the preparation of the participants.
I intend to provide a few of these observations in this and future posts as an aid to lawyers and their clients in asking for, preparing for and participating in mediation. One observation relates to the so-called “style” of the mediator. In my scheduling letter preliminary to a mediation engagement I advise the parties and their counsel that I have had experience in both evaluative and interest-based mediation. I think the best mediators can adapt to the facts and circumstances of individual cases in approaching the mediation process and apply one or both styles as appropriate.
Interest-based mediation in its purest form seeks to address the needs of each side, maximizes the range of solutions available and strives to allow everyone to emerge from the mediation with a settlement that is satisfying and meets felt needs. Evaluative mediation involves largely an economic analysis that assigns values to litigation positions, evaluates risks of loss and potential for victory and helps the litigants and their lawyers arrive at a number or a non-economic resolution that closely matches the risk assessment analysis. Both approaches have legitimacy, both can result in satisfying and lasting settlements, and both should be in your chosen mediator’s repertoire.
Another area of comparison among mediators is the predisposition to use the assembly versus caucus methods. Some mediators insist that parties should always meet face to face to enjoy (?) the benefits of conflict resolution up close and personal. Some mediators just as assiduously insist that parties should always meet with the mediator apart from each other and the mediator “runs interference” between their separate caucus rooms (settlement conference style). Some lawyers find one or the other method more comfortable and pick the format based on what works best for them, not what the individuals want or need. If you are thinking of selecting a mediator who cannot work comfortably in both formats, ask around.
Attorneys can do a great deal to assist their clients prepare for and participate in meaningful and productive mediation. One thing I have identified as particularly helpful is an attorney’s ability to write a good pre-mediation statement. For many mediators, the mediation statement prepared by and presented by counsel will be the mediator’s first introduction to the project. Attorneys who approach the work as if it was a legal brief will put both the mediator and their own client at a disadvantage. When I advise counsel to “tell me what this case is about” I do not mean that I want to hear about the Rule 12(b) motion that was erroneously ruled on by the court and will almost certainly be reversed on appeal, about the discovery abuses that have delayed the trial setting and will undoubtedly attract sanctions, or about the . . . — I want to hear the story. An attorney who hopes to successfully represent a client in mediation needs to understand and be able to relate the story at the heart of their client’s lawsuit. A well-written narrative can set the stage for a mediator who often knows little or nothing about the litigation that is pending or unfolding and provide the foundation for a successful and efficient mediation session.