Mediator’s Moment—Obstacles to Successful Mediation

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by C. Jean Stewart

A successful mediation requires that the parties feel satisfied both with the process and with the outcome. Several obstacles can interfere with the parties reaching satisfaction on either or both standards. Counsel often contribute to this failure. Here are some tips on avoiding these disappointments and helping clients achieve a satisfactory outcome.

  1. Reluctance to participate. One obstacle to successful mediation is the failure of parties to engage in a meaningful process. Some are fearful that discussing the issues underlying litigation could be perceived as a sign of weakness and hence adopt intransigent positions that yield no room for meaningful exchange. Unfortunately lawyers can sometimes get caught in this trap as well. Particularly in emotionally charged litigation, where attorneys come to identify with their clients’ positions, counsel may decline to work cooperatively on peripheral issues or even on the primary conflict in the case because of concern that talking about the dispute itself will undermine their litigation posture. In my experience, calmly and rationally explaining to opposing counsel/parties why and how one has come to a position rarely if ever diminishes the argument and, in fact, often contributes to the other side’s better understanding of the conflict and, ultimately, to resolution.
  1. Misunderstanding of Opposing Party’s Position. One of the most common obstacles that I see in mediating estate and trust cases is a complete misapprehension of the feelings, attitudes and positions of the other side. Unfortunately, many attorneys contribute to this roadblock. As part of my preparation for mediation, I require both counsel and the parties to present brief statements of position. In too many mediation statements, I learn that the arguments and positions expressed are based on a total misunderstanding of what the other side is thinking and has expressed to me in their presentation of the case. It is hard to overestimate how many times I have been told “We want to settle but the other side doesn’t” – by both sides! As a mediator, I work hard to get the parties and their counsel to devote appropriate time to active listening in advance of or during the mediation session to try to separate these misunderstandings from reality.
  1. Negotiating Styles. While almost everyone has had some life experience with negotiations, even if only in the experience of raising children (think toddlers and teenagers), many people, including many lawyers, have immature notions of the theory and practice of negotiations. When parties and their counsel are spending a majority of their time focused on how to negotiate, they frequently lose sight of the important issues in the mediation and fail to reach a resolution that meets their needs and puts the litigation to rest. Parties and lawyers who cling to notions about the effectiveness of techniques like “we refuse to make the first offer,” or “if we offer ‘x’ they will counter with “y” and then we will offer “z”, etc., etc. or “this is absolutely our last offer,” are often relying on inappropriate notions of what contributes to effective negotiation and have lost sight of the real issues and personalities in the case at hand.

Mediator’s Moment – Beginning at the End of the Matter

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by Jean Stewart

Attorneys preparing for mediation would be well advised to spend some time drafting a Terms of Settlement sheet in advance of the mediation session.  This exercise presents the opportunity to be successful in multiple ways. 

First, one of the observations I have made in multiple mediations is that attorneys and their clients do not always have consensus on the client’s goals.  Reducing the “hoped-for” outcome to a simple set of reciprocal terms helps to identify the client’s real goals before the mediation begins and assists both the attorney and the client separate the grain from the chaff. 

Second, parties who have sorted their priorities into “must have” terms versus incidental, “sure, what the heck” terms have a tremendous advantage in mediation.  Instead of getting overheated in the tension of negotiations, they can stay focused on the real priorities they brought to the process and let go more easily of the peripheral issues they grew attached to during litigation or in the mediation itself.

Finally, at the conclusion of mediation, I almost always ask one of the attorneys present to take out his/her laptop and compose a Settlement Agreement for signature.  I am happy with a simple “Terms of Settlement” agreement although some counsel insist on drafting more elaborate contracts.  Regardless of the format, attorneys who have given real thought to the essential Terms of Agreement (even if only the ones they hope for) in advance of the mediation are more effective and efficient than attorneys who get distracted by the process of drafting.

Enforcing Mediated Settlement Agreements

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by Jean Stewart

Resolution of a family conflict by mediation in trust and estate litigation is satisfying for the mediator but often tiring and less satisfying for the parties in conflict. Inherent in the mediation process is some give and take on all sides.  While mediators like to talk about “enlarging the pie” to the end that everyone gets all of their needs met, it is often the case that parties leave the mediation session with less than everything they hoped for or believed they would be awarded by the courts.

This requires that counsel for the litigants, not the mediator, insure that any settlement the parties reach is as enforceable as any contract.  While most lawyers learned basic contract law in their first year of law school and confronted a basic contracts question on their admission exam, some lawyers forget basic contract law when drafting their settlement agreements following mediation.  A valid, signed contract serves as the first defense to an effort to revoke a settlement agreement by a party who experiences remorse.   

Colorado also offers the parties, pursuant to CRS 13-22-308, an opportunity to streamline the enforcement of mediated agreements as court orders.  Yaekle v. Andrews, 195 P.3d 1101, 1108 (Colo. 2008). Getting signed settlement agreements approved and adopted as orders of the court is relatively simple in trust and estate litigation.  Most attorneys use the Rule 8.8, Colorado Rules of Probate Procedure Non-Appearance Hearing process. Making the settlement contract an order of the court offers a variety of additional mechanisms not only to resist any effort to revoke the settlement itself but also to invoke the court’s inherent authority to enforce its own orders.  

Mediation is hard work for the mediator, for the parties and for the lawyers involved. Everyone wants to avoid the consequences resulting from a party changing his or her mind. A successful mediation calls on the best lawyering skills to reduce the terms of the agreement to an enforceable contract.  When appropriate, seeking court approval and making the settlement agreement an order of the court further reinforces the agreement and enhances the likelihood that its terms will be carried out.  

Mediator Moment – Finis Origine Pendet

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by C. Jean Stewart

I have spent the last few days at the Straus Institute for Dispute Resolution at Pepperdine University in Malibu, California participating in one of their excellent advanced mediation courses with alternative dispute resolution practitioners from around the world.  We devoted plenty of class time to the discussion and appreciation of designing dispute resolution scenarios that will yield success. 

Spending the time and effort to design an appropriate alternative dispute resolution model can pay handsome dividends. I have always observed that cases that are rushed into mediation, without adequate attention paid to the design and preparation phase, frequently yield dissatisfaction in one or more dimensions. I thought I would report here on a satisfying result that recently came from a thoughtfully planned process.

Counsel in a contested trust matter approached me to design an arbitration/mediation session that has persuaded me to encourage parties and their counsel to consider this idea when faced with a certain kind of dispute.

Here’s how it worked:  In preparation for Stage One of the session, counsel presented statements that were NOT confidential, but were shared with me and with each other.  Counsel included some stipulated exhibits and pleadings. The engagement included an understanding that there would be NO ex parte communications with me until Stage One of the session was completed. The parties had agreed to abide by whatever award/decision I made on the issues, but more importantly, agreed that before I informed them of that award/decision, they would participate in good faith mediation.

On the day the session began, Stage One was an arbitration in the form of a mini-trial complete with opening statements, direct and cross examination of a witness on each side of the case, admission of the stipulated exhibits and closing arguments. At the end of the mini-trial, I took a brief recess, recorded my decision in a brief written summary, placed it in a sealed envelope that I signed and laid aside. 

We then adjourned to Stage Two, which was a mediation, including private caucuses, where the parties made confidential disclosures to me and participated in meaningful, good faith negotiations leading to a settlement of the issues which was reduced to written form and signed by the parties. Ultimately the sealed envelope containing the award/decision was shredded without being revealed to either party or to counsel.

This model is appropriate in cases where the parties want a final and definitive resolution without additional litigation in a case with discrete, identifiable issues.  It addresses the several ethical issues that have prevented me from agreeing to participate in arbitration after a mediation session for the same parties.  Some of the other factors that contributed to the success of this model were: These attorneys were both excellent, presenting crisp and efficient arguments and witness examinations. Their clients were attentive and engaged and left me with a clear understanding of the issues. I applaud these attorneys for creating this opportunity for dispute resolution that I will surely recommend again when the occasion arises.

 

I also appreciate the opportunity to apply the Latin expression that was emphasized in our sessions at the Straus Institute, Finis Origine Pendet -  “the end depends on the beginning.”

Mediator’s Moment – Before You Mediate

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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.