Vail Law column: The flow of mediation
April 11, 2017
I have a week of mediation coming up and so mediation is on my mind.
Most times before a mediation, I sit down with my client and unless she has been through a mediation before, I explain to her the process and the flow. Like many things, mediation often has a certain predictable drift and cadence to it. A mediation is like a river. And, if you know where and when to expect the eddies, vortices, and ripples, then you know when to hold on to the gunwales and when to dig in for a stroke.
Before we get there, though, what exactly is a mediation? And how is a mediation different than an arbitration? And, while we're at it, why would any right-thinking person want to mediate in the first place?
Both mediation and arbitration are devices of ADR — alternative dispute resolution. Alternatives to what, you may be asking? To the full-blown, bare-knuckled donnybrook of court. Arbitration and mediation are both less formal means than the open warfare of litigation and, although in that way, they share certain attributes, they are also distinctly different. Both, however, hold the promise of resolving a dispute out of court, ideally more efficiently, more cheaply, and more quickly.
Usually in the first hour, the mediator welcomes the participants
— most times, held apart with counsel in separate rooms. The mediator first comes into one room and then the other with a hale “good morning” and the cheer that the simmering dispute may soon be laid to rest. He will explain how the process will work, that settlement presupposes compromise, and that all parties must act earnestly and in good faith if they hope to reach a resolution. He will explain too that anything said or offered in mediation is limited to the settlement venue and, if settlement is not reached, may not be used against a party if the litigation proceeds.
Arbitration may be defined as "pseudo litigation." What I mean by that is that although an arbitration is conducted outside of a courtroom — and may (but not always) be subject to less formal rules — at the end of the day, a decision regarding the dispute is made by a neutral third party — a "pseudo judge." In fact, most, if not all times, the pseudo judge is a real judge who has retired from the bench but who continues to privately hear disputes. The pole star of an arbitration is that someone other than the parties settles the dispute.
Arbitrations may be binding or non-binding on the parties, the latter of which has always seemed to me like a test balloon for litigation. While a non-binding arbitration may lead to settlement of the dispute, and certainly gives the parties a preview of what may happen in a courtroom, it's a bit like kissing your sister — pucker without passion — whereas a binding arbitration is more like a shotgun wedding.
Mediation's more mellow
In mediation, it is the parties themselves who reach their resolution. While the mediator guides, cajoles, directs, and knocks heads together, the ultimate determination of whether to resolve the dispute or not, and on what terms, lies with the disputants themselves. Whereas in arbitration, the arbiter will come to a decision, in mediation, the parties themselves must settle the matter or not.
If the key aspect of arbitration is that the arbiter renders a decision, then the guiding principal of mediation is compromise. Only rarely does anyone emerge from mediation without some give-and-take.
What, though, about the premises with which we stared; the flow of mediation?
I often describe it as an hourglass. Think of that shape; broad shoulders, narrow waist, and broad hips as the sands slip through from the upper chamber to the lower.
Usually in the first hour, the mediator welcomes the participants — most times, held apart with counsel in separate rooms. The mediator first comes into one room and then the other with a hale "good morning" and the cheer that the simmering dispute may soon be laid to rest. He will explain how the process will work, that settlement presupposes compromise, and that all parties must act earnestly and in good faith if they hope to reach a resolution. He will explain too that anything said or offered in mediation is limited to the settlement venue and, if settlement is not reached, may not be used against a party if the litigation proceeds. Say, for example, an offer of settlement is made and rejected, the rejecting party may not take the offer to court as proof that the offeror knew his case was worth less than what he is asking for. The mediator will also most times share that he is a facilitator and cannot be called as a witness if the matter fails to settle.
The preliminaries over, the next phase is where the mediator digs in. He will usually sit with one party, then the other, and pick over the strengths and weaknesses of each party's position. A good mediator will bring to bear his years of expertise, insight and experience and apply them to the case. "Have you considered this?" "What about that?" "Isn't this a weakness?" "Is that a supportable position?"
This phase of the interaction often takes a couple of hours and as the mediation rounds towards late morning, the mediator will ask one party or the other to make a first offer of settlement. This is where the shoulder of the hour glass begins to bend towards the narrow waist. Both sides may feel, until now, that they have been making progress; there is good cheer and the mediator "gets" them. With the first offer, there is hope for resolution.
As stomachs grumble toward a lunch break, often the first offer is replied to and the sense of kumbaya sometimes begins to crumble. A counter-offer is made and may not be warmly received. The parties regroup and break for lunch.
As the sands slip through the narrow waist, there is often a feeling of "what if?" It seems the parties were getting closer and now the dispute is widening towards the hips. Several hours may go by without a sense of progress being made.
But then the magic happens. Just as the parties are nearing exhaustion — late afternoon — and asking why they spent the time and money trying to resolve this damn dispute, there comes a little crack.
And, as the slender spear of hope shines through, the parties seize on it. They will begin to shape what may be acceptable to both and, most times, resolution — if it comes at all — comes late. Usually, more progress is made after 3:30 or 4 p.m. than seems to have been made in the hours, days and months before.
Many times, I have seen settlement reached long after business hours have tucked themselves in for the night. There is a flow and process. And weariness, it seems, is most times a key element for resolution.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Stevens, Littman, Biddison, Tharp & Weinberg, LLC. His practice areas include: business & commercial transactions, real estate & development, family law, custody, & divorce and civil litigation.
Robbins may be reached at 970-926-4461 or at his e-mail address: Robbins@SLBLaw.com.
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