Mediation Competency Begins with Me

The key to developing true mediation competency:

In addition to skills training in mediation, what do mediators need to improve their mediation competency?  While mediation skills training remain essential to the practice of mediation, the key to developing mediation competency begins with self-reflection and self-management.  Before we can effectively assist those in conflict, we must first look inward to better understand our own emotional competency and the impact we have on others around the mediation table.  Developing mediation competency is truly a life-long journey of self-development that begins with “me”.   

So began my conversation this past summer in Vienna with my friend and colleague Dr Mario Patera of Konflikkultur in Vienna, as we reconnected to reflect on mediation training during the pandemic.

We began with the observation that all mediators should understand that as facilitators of the negotiation process, we introduce ourselves into the conflict.  With that introduction comes our own unique personality, emotions, and life experiences, including biases. It’s this constellation of individual characteristics and skills that makes each of us unique and why mediation at its core is truly an exercise in personal service.

Yet Dr Patera and I lamented that most mediators looking to improve their mediation competency, and therefore many training courses, are quick to focus on specific skill development, ignoring completely the critical need for self-reflection and self-management as a precursor to effectively assisting those in conflict. Simply stated, self-management remains a professional blind spot for many mediators who eschew the need for and the effort required to effectively manage themselves as an integral part of the mediation process. Dr Patera concluded that it’s incumbent on those seeking to develop mediation competencies to begin by looking inward and committing to a journey of self- development. I summarized our conversation with the somewhat counter intuitive observation that mediation begins with “me”.

What do I mean by self-management and what do mediators need to understand about themselves before effectively engaging with others? Before answering the question of what self-management is, it’s important to distinguish what it is not. Often self-management training in the business world focuses on time management and how to increase productivity. In contrast, the discussion of self-management by mediators is less about efficiency and more about effectiveness. It’s less about acquiring specific skills and more about developing social competencies. In fact, describing the process as self-management training does an injustice to the level of commitment and lifelong journey required for self-development.

What then is self-management, and why is it an essential first step in developing mediation competency? Ancient Greeks emphasized three aspects of the human experience: the mind, the body, and the spirit. This time-honored perspective provides a valuable template for examining self-management and its goal of developing mediation competency. Specifically, we should envision a triangle with each side reflecting a different focus of self-management: self-management of the mind, self-management of the body and self-management of the spirit (emotions).  A deeper understanding and self-mastery of these focuses of self-management should become the taproot of all future learning.

Mediation Begins with Me

  • Self-Management of the Mind

Over the course of my teaching career, I’ve coined the term Mediator’s Mind™ to describe the mental model we create for ourselves that defines our approach to mediation and shapes our every intervention in the conflict environment. Self-management of the mind begins with self-reflection and developing a strong vision of how we see our role in mediation. This mental model will become a mediator’s North Star that can be returned to time and again during difficult moments in mediation.

I’ve also described our journey through life as an exercise in focused attention. Yet we know from brain research that at any given moment, we only commit a fraction of our available attention to the task at hand. Similarly, we know from our own everyday experience that the constant white noise of our internal conversation, at best, distracts us from devoting full attention to communicating effectively with others. Self-management of the mind thus begins with sharpening our ability to focus and using our internal voice productively while engaging others in conversation.

More recently, we have developed a deeper appreciation for the role that cognitive and emotional biases play in our ability to perceive the environment clearly and communicate effectively with others. Effective self-management of the mind begins with understanding our own biases and how to account for them as we intervene with others in mediation.

  • Self-Management of the Body

As mediators, we know the importance of nonverbal communication and pay as much attention to physical cues as we do the spoken word. Yet, how many mediators take the time to hold up the mirror of self-reflection and examine their own body’s cues and role in mediation? How many are aware of their own internal signals? There is a term in psychology, somatic markers, which refers to our physical responses to external stimuli, often stressors in our environment. An example is when you open your email server and just seeing a sender’s name causes your stomach to turn or your jaw to clench. In mediation, how many times have you paused before walking into a private conversation with one party, only to observe a tightness in your chest or some other physical manifestation of stress? Learning to pay attention to these important signals our bodies send us is the first step to self-management of the body.

Equally important is mastering our own body language. The recent trend toward online dispute resolution and the forced marriage between mediation and technology has offered an unparalleled opportunity for self-management of the body. Spending eight hours a day on a computer screen provides the opportunity to observe yourself in the moment. We have never had a better chance to witness and become aware of our body language, including subtle facial expressions, as we communicate with others.

Finally, the physical demands of mediation remain a blind spot for many. Preparing for and navigating the physical needs of full-time conflict resolution mirrors the training required of a high-level athlete. Rest, nutrition, and stamina are all part of the self-management conversation.

  • Self-Management of the Spirit (Emotions)

Self-management of the spirit entails developing emotional intelligence, defined as the ability to perceive, understand, and manage emotions. The journey toward expanding one’s emotional intelligence has been, metaphorically speaking, equated to exercising and strengthening one’s emotional muscle. And the first step toward developing one’s emotional muscle is self-assessment, evaluating what shape you are in and acknowledging your baseline for expanding your emotional capacity.

To assist this capacity building, we begin our training by encouraging students to engage in reflective exercises to understand and appreciate how one’s immediate family members influenced their emotional development.  We also train them to use positive and negative scales to rate their current feelings. These exercises help mediators learn to attend to their own emotional state while better understanding the opportunity for developing a higher level of emotional competency.

Self-management of one’s emotional well-being also includes self-care and self-compassion. It’s paradoxical that many of us are drawn to this profession by a profound need to assist others, and doing so effectively requires extraordinary amounts of empathy and compassion. Yet when the mirror is reflected inward, we find an industry-wide epidemic of compassion fatigue and burnout caused by an inability to access the same degree of self-compassion as one has available for others.  Simply put, one cannot continuously work close to the flame of high emotions without giving equal attention to one’s own well-being.

Conclusion

 The journey toward mediation competency, one which effortlessly demonstrates valuable skills and techniques in the presence of strong emotions, begins with a commitment to honest self-reflection and thoughtful self-management focused on mind, body, and spirit (emotions). Yet the noble goals of achieving the highest levels of emotional intelligence and social competencies will not come from books, blogs, or webinars. Instead, they will evolve only from a lifelong commitment to self-reflection and personal development. These are not easy lessons yet they must be the first steps taken along the journey of preparing ourselves to help others. For those mediators willing to make this commitment, it will lead to impressive mediation skills and a higher quality of life. It’s why we need to remind ourselves that the road to mediation competency begins with “me”. 

 

 

Average Settlement Offers in Mediation

Average Settlement Offers in Mediation

I was asked by a journalist recently about the average settlement offers in mediation.  And while his search for understanding is laudable, the question itself is misguided.  

Mediation, a form of alternative dispute resolution, is best defined as a facilitated negotiation.  At its core, it is a voluntary process that relies on the skilled intervention of a neutral third party or mediator.  The mediator’s job is to help disputants understand the other’s perspective, position, and interests in a dispute and effectively communicate settlement offers between them to reach a final agreement.  Unlike a judge or an arbitrator, the mediator is not a decision-maker but a neutral third party who assists the parties in arriving at their own decision for settling a dispute.

Growth in Mediation for Settling Commercial Disputes

Civil litigation in the United States, particularly those cases that end in trial, has been steadily declining over the past few decades.  It’s now quoted that fewer than one percent of commercial cases filed in federal court will end in a trial.  The same trend is apparent in commercial disputes filed in most state courts as well.  This means that the vast majority of commercial disputes end in settlement. 

While civil jury trials have been declining, the use of mediation and other forms of alternative dispute resolution for resolving commercial disputes has steadily increased.  Mediation offers several advantages over litigation for settling disputes.  The attorney fees, time, and friction associated with mediation are generally far less than with  litigation.  Mediation, being a voluntary process, offers parties complete control over the process and the outcome of the process.  Where mediation has been used, it has enjoyed high success rates in achieving settlements with acceptable results for both sides of a dispute. 

What then is the role of mediation and the facilitated exchange of settlement offers in achieving this success?  To illustrate, we’ll look at a mediation scenario and the facilitated negotiations for settling a typical commercial dispute.

How Do You Negotiate a Settlement in Mediation?

To better understand how mediation helps optimize outcomes while saving the parties time and expense, we must first do a deeper dive into a quintessential commercial dispute, let’s say, a personal injury lawsuit.  Envision a typical car accident involving a middle-aged woman stopped at a crosswalk as she waited for pedestrian traffic to clear.  Without warning, her vehicle is struck from the rear by a local public works vehicle whose driver was distracted by looking at his cell phone.  As a result of the collision, the woman suffers a physical injury to her neck and spine and incurs significant medical expenses for ongoing treatment.  She brings a civil lawsuit naming the public works department and its driver as defendants, both of whom are ultimately defended by the town’s insurance company.

Agreement to Mediate

The defendant’s insurance company suggests and both sides agree to participate in a voluntary mediation to determine whether the matter can be settled outside of court before more formal and costly litigation ensues.  Prior to the mediation, the mediator reaches out to the plaintiff’s attorney and solicits a settlement offer, sometimes referred to as a demand, to begin the negotiation process. 

The Mediation Joint Session 

Once at the mediation, the mediator assembles both sides in her conference room and invites opening statements.  The goal is to provide each side the opportunity to share their unique perspective on the facts and law giving rise to the litigation.  In addition to the facts and the law, the joint session is often where the parties’ priorities come to light.  In the above example, the plaintiff brings up the fact that her children went to the local school and crossed the street at the very same crosswalk.  In an appropriate but emotional fashion, she expressed concern for the safety of all local children walking to school.    

Private Meetings and Settlement Negotiations

Following the exchange of opening statements, the parties are separated into different rooms and invited to speak privately with the mediator.  These confidential meetings allow the parties to express their views and interests in private that they might not otherwise be willing to talk about in a joint session and to discuss various options with the intent to find a resolution. 

At some point during the private meeting with the mediator, the defense attorney, and the defendant’s insurance company representative, the mediator will ask for an initial settlement offer from the defendants in response to the plaintiff’s demand.  Once communicated to the plaintiff, the facilitated negotiation is underway. 

Depending on the perceived appropriateness of the plaintiff’s demand, the initial offer may itself be viewed as reasonable or not.  It’s important to emphasize that no two negotiations are the same.  The process of exchanging settlement offers and demands may involve two steps or twenty two steps depending on the complexity of issues and the amount of money involved.  The negotiation dance varies from case to case but shares common characteristics.  Both sides tend to initiate the process by making exaggerated settlement offers.  This is done to test the water in hopes of optimizing any potential outcome.  One of the many benefits of having a trained negotiation professional as a mediator is that she can assist the parties in navigating this otherwise polarizing moment in negotiation. 

In the example above, the mediator may learn in a private meeting with the plaintiff that her primary motivation for the litigation was to ensure that local school children would not be at risk of injury or worse while crossing that intersection.  After reporting this understanding to the defendant and their representatives, the town agreed to install a stop light at that crosswalk.   

The negotiation itself may conclude during the mediation session or may require the continued exchange of settlement offers after the parties have left the building.  

Settlement Agreement

We know statistically that any distributive bargaining exercise is most likely to conclude mid-way between the first reasonable settlement offer and reasonable demand. 

In many instances, a settlement agreement may include creative solutions as described above, not typically available under traditional legal remedies.  In addition to installing a stop light, the settlement above might include an agreement from the public works department or its driver to apologize to the injured woman, along with appropriate economic compensation. 

Once the parties have reached a verbal agreement on all settlement terms, the mediator will assist the parties in fashioning a written settlement agreement to be signed by all parties. 

Having reached an agreement out of court and well before a more traditional settlement would be possible, those involved in mediation often describe their experience as “winning” in mediation.

Plaintiff vs. Defendants in Mediation

Average Settlement Offers In Mediation

While there are few reliable statistics available regarding average settlement offers during mediation, we do know that offers reflect a multitude of variables from liability and damage considerations to the motivation of the parties to resolve the conflict. And every case represents different levels of motivation depending upon the unique nature of the claims and the priorities of the parties involved.  Because these variables differ widely from case to case, there is no reliable way to determine an average value for settlement offers.  There are, however, some known commonalities in settlement offers that can help inform and prepare parties during a mediated settlement.  We know that: 

  • Both parties will approach the settlement from different perspectives, with the plaintiff hoping to get the most money out of a settlement and a defendant looking to pay the least amount of money possible.   
  • The first offer commonly starts high (if it comes from the plaintiff) or low (if it comes from the defendant).  This shows the other side that they are unwilling to give too much too soon.
  • Both sides will probably start far apart in their offers and then make their way toward each other as the negotiations move on.  
  • Negotiations during a mediation can take time.  At the beginning of the day, the parties may not move closer to an agreement as they feel they need to maintain strong positions.  But as the day goes on and the direction of the settlement begins to crystalize, they may move faster and closer toward settlement or decide that it will not work out.
  • The outcome of the negotiation will be somewhere in the middle and that most of the time, the plaintiff will leave with less than they wanted, and the defendant will pay more than they wanted.

What Percent of Cases Settle in Mediation?

We know that most commercial disputes settle during or shortly after the formal mediation process.  It’s important to emphasize that many ethical rules governing mediator conduct prohibit the advertisement of specific so-called “success rates” as they may be prone to hyperbole and exaggeration.  Yet, we know anecdotally from industry-wide reports that the majority of mediations end in successful resolution, defined as voluntary agreement of the parties.  This industry success rate is well in excess of 75%.  Clearly, the skillful handling of settlement offered by trained neutrals and the ability to overcome moments of impasse play a crucial role in this industry’s success. 

How Do You Win at Mediation?

Unlike a jury verdict in a civil trial, there is no clear winner and loser in a mediation settlement.  The goal of mediation is to reach a win-win settlement, where both sides see the outcome as fair and desirable and feel that they have reached a satisfactory agreement on their own.   

A win-win settlement does not necessarily mean an equal win for both sides.  One party may gain more in a settlement than the other, but as long as both parties gain more and both parties’ problems are solved, a win-win outcome is usually achieved. 

Not every mediation will end in a settlement.  For those that do, some recognizable behaviors contribute to the successful cooperation of the parties in reaching a settlement agreement.  Some of the behaviors include: 

  • The parties understand that they are there to find options that reconcile the interests of both sides and reach a reasonable result.
  • They come prepared and know the strengths and weaknesses of their case, the costs of litigation, and the risks they are assuming if the case does not settle.
  • Parties and their representatives have thought about the range of money they would feel comfortable giving or taking and are prepared with an opening offer.
  • Parties do not focus exclusively on demonstrating that they are right.
  • They focus on the interests of both sides.
  • Parties and their representatives treat the other side with respect.
  • They understand that they will not get everything they initially demanded.
  • Parties are open to non-conventional solutions.
  • Finally, they understand that patience is required throughout the process. 

Many mediators agree that the sign of a successful mediation is when the plaintiff agrees to accept less than expected and the defendant agrees to pay more than expected.  To get to a settlement, compromise on both sides should be expected.

Definition of successful settlement in mediationWhat Happens After a Successful Mediation?

Once the parties have reached a verbal agreement on all settlement terms, the mediator will assist the parties in drafting a written settlement agreement to be signed by all parties.  Part of the agreement is a release, which is an agreement between the parties stating that one of the parties will relinquish their privileges to a legal claim.  Many mediation settlement agreements also contain confidentiality provisions, whereby the parties agree that the settlement terms are to be kept confidential and not disclosed to any third party unless required by law.  In the US, after both parties sign the agreement and payment is made, the counsel for the parties will advise the court that the matter is settled, and the judge will sign an order of dismissal.  At that point, the legal case is resolved, and in most civil cases, the parties will not need to return to court.  

The Settlement Agreement is a Binding Contract

In the US and in many other countries, a mediation settlement agreement can become a binding contract that can be enforced in a court of law.  Parties to the agreement may not change their minds about it later.  If a party fails to comply with the terms of an agreement, the court will likely enforce the agreement, and sanctions may be entered against that party.  Also, attempting to change or add new terms to the settlement agreement post mediation may be difficult.  For instance, if one party wants confidentiality or non-disparagement language in a settlement, those terms should be discussed during the mediation session before a final settlement is reached.

The mediation process is an efficient and effective forum for settling disputes outside of court.  Using a skilled neutral third party to facilitate the discussions and the exchange of negotiations, the parties in a dispute can shape a mutually beneficial resolution and come away with a successful outcome.

What is the Difference Between Mediation and Arbitration?

What Is The Difference Between Mediation And Arbitration

What is the difference between mediation and arbitration?

Mediation and arbitration share a common lineage as alternatives to the traditional legal system of court and jury trials.  Known as different forms of alternative dispute resolution (ADR), they are both intended to offer less expensive, more efficient outside-of-courtroom approaches to resolving disputes than afforded by more formal litigation.  Yet there, the similarities end.  Mediation and arbitration are fundamentally different processes involving distinctly different conflict resolution approaches.

 

The Continuum of Dispute Resolution Processes

To best understand these important distinctions, it’s helpful to envision dispute resolution processes along a continuum of choices.  To the far left lie the less formal, less expensive, and voluntary processes, including conciliation and mediation.  As one moves conceptually toward the right end of the continuum, one moves towards the more formal tribunals like arbitration until reaching the most formal approach to dispute resolution — litigation — the civil trial and appellate process.

Timeline Description automatically generated

Alternatives to Litigation for Resolving Disputes

Before deciding on an alternative to litigation for pursuing a conflict, it is essential to understand the key differences in the alternative dispute resolution processes.

 

Arbitration

Arbitration is a method of resolving a civil dispute outside of the court system in which the disputants present their case to an impartial third party, who then makes a decision for them that resolves the conflict.  Historically, arbitration was synonymous with alternative dispute resolution as it was the first process developed to save the time and expense of protracted litigation.  

Situated to the right of the center of the dispute resolution continuum, arbitration is more formal than mediation or conciliation and can look more like the litigation process.  That is because, like litigation, arbitration is, at its core, an evidence-based, adjudicative process.  

Arbitration involves a hearing resembling a trial that takes place outside the courtroom, requiring the participation of the parties in dispute.  The arbitration process is conducted according to formal rules of arbitration administered by a single neutral arbitrator (or a panel of arbitrators) whose task is to conduct a formal hearing, including lay and expert testimony.  Like a trial, the hearing can often take weeks to complete.  Once testimony is concluded, the arbitrator rules on the evidence by issuing a decision.  The arbitrator’s decision, or “award,” is legally binding (unless the parties previously agreed to a non-binding arbitration).  Because the decision is final, there is no formal appeals process available.  Even if one party feels the outcome was unfair, unjust, or biased, they cannot appeal it. Unlike mediation, in an arbitration there are no discussions about working out the parties’ differences.

Arbitration is typically compelled by contract or statute, although parties can also agree to arbitrate after a conflict occurs.  A contract that includes an agreement to arbitrate disputes (an arbitration clause) will outline some key aspects of any potential future arbitration.  The rules and procedures that will be used in arbitration are typically part of this agreement.  If a third-party alternative dispute resolution service such as JAMS or AAA will be used to handle an arbitration, the contract may specify whether the rules and procedures of that third-party service will be used.   Rules typically address:

  • Number of arbitrators
  • Selection of arbitrators
  • Timeline for arbitration
  • Evidence
  • Awards
  • Confidentiality and records

The Arbitration Process

The main phases of an arbitration process include:

Initiation: An arbitration case begins when one party submits a demand for arbitration which outlines the parties involved, the nature of the dispute, and the relief being sought.

Selection of Arbitrator: both parties identify and select an arbitrator

Preliminary Hearing: Conducted by the arbitrator, a preliminary hearing with the parties may be held to discuss the issues in the case witnesses, depositions, sharing information, and other procedural matters.

Discovery: The parties identify witnesses, evidence, and experts, exchange information, and prepare for the hearing.

Hearing: At the hearing, parties present testimony and evidence to the arbitrator.  There is usually only one hearing before the arbitrator unless the case is very complex.

The Award: the arbitrator concludes testimony, closes the record on the case, and issues a decision, including an award.

 

Mediation

A more recent approach to alternative dispute resolution is mediation, often defined as a facilitated negotiation.  Mediation is a process where two parties meet outside of court with a qualified and neutral third party, the mediator, and discuss their various issues to try to come to an agreement.  In commercial mediation, lawyers represent the disputants and are referred to as Mediation Advocates.

The mediation process is flexible, reflecting both the dispute’s unique requirements and the parties’ underlying needs and interests.  Typically, mediation involves a combination of face-to-face discussions with the parties and private meetings with the mediator.  Because there is no formal presentation of evidence, mediation can often be called upon early in a dispute before the parties’ positions harden and costs become another component of the conflict.  

Perhaps most important, what distinguishes the mediation process from arbitration is that the mediator’s role is to assist the parties in fashioning a solution of their choosing and “getting to yes” in the process.  Unlike arbitration, the mediator’s role is to facilitate difficult conversations, not sit in judgment of the parties.  In other words, the parties in mediation, at all times, retain control of decisions impacting the outcome of the dispute and their lives.  If and only if the parties voluntarily agree on an optimized solution, will they move toward concluding the dispute. 

As a voluntary, non-binding process, many courts and contracts will require mediation as a first step in a stair-step approach to other more formal dispute resolution processes.  All these advantages are capped with an appreciation that mediation is successful more often than not and can often be successfully implemented in a single day or less.  It is thought to be the preferred alternative, particularly where an ongoing relationship between the parties might otherwise be destroyed by the fallout of an adverse arbitration ruling.  

 

The Mediation Process

More and more, courts are adopting mandatory requirements for mediation as a first step in solving civil disputes.  In cases where mediation remains discretionary, most parties initiate mediation before or sometimes after litigation has been undertaken, without any involvement by the court.  This could be at one of the following critical junctures in a case: 

  • At the outset, following a demand letter or service of the complaint 
  • Just after a dispositive motion has been filed and is pending 
  • After the completion of limited but critical discovery 
  • On the eve of trial, following the completion of expert discovery 

Selection of the mediator:  

Once both sides have agreed to mediate, they jointly agree on a mediator.  The parties should try to find a mediator who is knowledgeable about the subject matter of their case, has experience litigating or mediating similar cases, and whom they think has the mediation skills necessary to bring the parties together in a settlement.

The Mediation Brief  

Once a mediator is chosen, the parties submit to the mediator copies of briefs and exhibits that they may have filed in court or may have created for the mediator.  The mediation brief is a central tool for the mediator to understand the factual, legal, and practical issues affecting settlement.  An effective mediation brief includes a concise statement of material facts, applicable law, damages, and settlement expectations, wrapped in a historical overview of the case.

In-person mediation meeting

The mediation is held in an office, usually provided by the mediator, not in the courthouse.  The parties, their lawyers, and the mediator attend the meeting.  The typical length of a mediation is less than one day.

Joint meetings in the mediation process

Mediation in a complex case typically begins with all parties, their attorneys, and occasionally experts assembled for a joint meeting to present the facts and legal arguments to the other parties, attorneys, and the mediator.  

Private caucuses

Following the joint meeting, particularly in commercial mediation, the mediator will typically separate the parties and begin meeting with them in a series of private, confidential meetings, or “caucuses.” In the caucuses, the mediator works with each side to discuss the strengths and weaknesses of the case, bring the parties’ positions closer together and explore settlement opportunities.  Either or both parties can decline to accept settlement offers.  

Closing the mediation

The goal of mediation is to obtain a durable settlement agreement acceptable to all parties.  If a settlement is reached, the mediator will draft, and the parties will execute, a binding settlement agreement that will include the dismissal of the case or the entry of an agreed judgment.  The mediator may encourage the parties to reconvene to continue settlement efforts if no settlement is achieved. 

 

Conciliation

Conciliation

Conciliation is a form of alternative dispute resolution similar to mediation.  In the United States, conciliation is commonly referred to interchangeably with mediation as both involve the intervention of a trained neutral facilitator appointed by the parties in the conflict.  However, there is a slight difference in the role played by the neutral facilitator.  In conciliation, the conciliator plays more of an advisory role and proposes workable solutions for both parties to help them to settle their disputes.  While the conciliator can recommend solutions, the disputing parties are not legally obligated to abide by the conciliator’s opinion.  As in mediation, only the conflicting parties in a conciliation can settle the dispute.  The conciliator is there to guide the conversation and make suggestions.  

 

Comparison of the Key Characteristics of Arbitration and Mediation

By understanding the key characteristics of arbitration and mediation and their place on the continuum of alternative dispute resolution processes, parties in a dispute can decide on the process that best suits their needs.

Characteristics

Mediation

Arbitration

Place of Hearing

Outside of court

Outside of court

Type of Process/Hearing

Informal

Formal

Time to Settlement

Fast

Longer than Mediation

Cost

Economic

Less economical than mediation

Decision Maker

Mediator

Arbitrator/Panel of Arbitrators

Role of Decision Maker

Mediator helps parties come to a mutual agreement

Arbitrator rules on evidence and decides the outcome

Type of Remedies

Creative remedies possible

Legal only

Resolution

Parties decide the outcome

Award imposed by an arbitrator

Legally Binding 

Yes, if both parties agree on settlement

Yes

Risk

If agreement is not reached, may result in litigation

Award is final.  No appeal possible.

Confidentiality 

Private

Private

Satisfaction with Settlement

Win: Win agreement: Relationships likely retained

Winner and loser: Relationships may be strained


What is better, mediation or arbitration?

Both mediation and arbitration have their advantages and disadvantages.  Both are effective ways of solving disputes outside of court that are faster and more economical than traditional litigation and take place outside the public eye.

Certain situations nevertheless may benefit from mediation rather than arbitration.  Meditation may be the preferred option when:

  • Both parties believe they can reach an understanding on their own terms.
  • It is a first attempt to deal with a conflict, and it will likely not escalate to arbitration or litigation.
  • The parties will continue working together and must maintain an ongoing relationship despite disagreement.

Mediation in civil disputes often involves business partners, landlords and tenants, and labor unions and management.  Mediation is one of the most commonly used alternative dispute resolution methods in the construction industry and is also becoming increasingly more prevalent in the area of franchise law.

Arbitration may be preferred over mediation in other conflicts—particularly those with high stakes or complexity.  Arbitration may be a better option than mediation when:

  • A legal matter has escalated and become a more serious issue
  • Both parties have not been able to settle on an agreement

Generally, arbitration is used as a step to resolve the dispute before going to court.  It is widely used to resolve a wide range of commercial disputes.   Arbitration clauses are found in many construction contracts, contracts for the sale of consumer and business products, contracts between employers and employees and between co-owners of a company, and in many other situations.  Some agreements, such as insurance contracts, require a dispute to be resolved by arbitration and not by the traditional court system.

In summary, Many disputants, in-house counsel, courts, and judges are demonstrating a strong preference for mediation, arbitration, and other forms of dispute resolution for resolving conflicts outside the courtroom.  Offering a less expensive, more efficient option to traditional litigation, they are effective methods of resolving civil disputes of all complexities.

By understanding the key characteristics of arbitration and mediation and their place on the continuum of alternative dispute resolution processes, parties in a dispute can decide on the process that best suits their needs.


The Effective Mediation Brief: A Missed Opportunity for Many

effective mediation brief

By Bruce Edwards

Earlier this year, my colleagues at the Weinstein International Foundation sponsored a mediation brief writing competition. The goal of the competition was to inspire and develop mediation brief writing skills in law students from around the world. In preparing the competition, it became clear to my colleagues that little has been written about the important role mediation briefs play in the broader topic of mediation advocacy. Additionally, little formal criteria could be found to assist the judges in evaluating and scoring brief content. 

All too often, mediation brief writing has been given short attention by legal professionals eager to move on to acquiring the oral advocacy skills necessary for persuasion. Their failure to appreciate the importance of an effective mediation brief, as well as understanding what goes into writing one, represent a missed opportunity. If the goal of mediation is to change the mindset of others involved in a dispute, a properly prepared mediation brief represents the earliest and potentially best time to shape their thinking.

For most mediators, the criteria of “I know a good brief when I see one” represents the extent of their conversation about what makes an effective brief. Their lack of clarity does little to advance the learning of others. 

What is it about a mediation brief that differentiates one that persuades from one that further separates the parties? What do experienced mediators value most when presented with a brief?

What to consider when writing a mediation brief


1. Share the brief whenever possible. The quintessential first issue for every brief writer is whether to share it with others involved in the case, or simply provide it for the mediator’s private consideration. I believe that briefs should be shared whenever possible, since the brief is the first step toward transforming the opinions of others. It will also promote the free exchange of information once the mediation is underway. Parties who wish to address confidential information with the mediator or provide suggested settlement ideas in advance can do so in private phone conversations or separate written submittals.

2. Avoid the repurposed legal document. All too often, attorneys who are pressed for time or don’t understand the value of a well-prepared brief, opt to submit an existing legal document to the mediator, such as a pleading or motion. In the process, they have missed an opportunity to clearly and succinctly state their client’s position. Whenever possible, strive to write a persuasive statement that is different in tone and content from other documents regarding the case.

3. Summarize facts efficiently. Many mediators suggest that parties submit mediation briefs of a certain length, often no more than ten to fifteen pages, since the amount of detail required for trial or arbitration is not essential for a facilitated negotiation. Yet, many a night is spent by mediators reading twenty-five to thirty-page tomes, plus reviewing multi-page exhibits. The effective mediation brief is not a James Michener novel and should seek to capture, not dull, the reader’s attention.

4. Cite supporting caselaw appropriately. Many disputes have at their core a finite legal issue or two that is worthy of developing in detail. In those instances, don’t hesitate to highlight statutory language or caselaw, always underscoring the most important words or phrases for consideration. Most mediators don’t need a primer on the elements of a negligence cause of action or what a party needs to prove to establish a breach of contract. Your key legal arguments will be diluted if the mediator needs to cull important information from an overdeveloped legal presentation.

5. Set the proper tone. Herein lies the true art of mediation advocacy. The most effective mediation briefs thread the needle between forceful advocacy and adopting a tone of conciliation. They implicitly or explicitly convey that the party is there in good faith, willing to consider appropriate concessions, and looking to collaboratively engage. The best mediation advocates preview their briefs with their clients while explaining why they need to read differently than their motions for summary judgment.

6. Look to persuade, not put off. Here again, the challenge is to convince others of the strength of your position without alienating them in the process. The most effective mediation briefs avoid irritating words or phrases that cry out for response. They marshal the facts without unnecessary exaggeration or hyperbole while acknowledging gaps in the road to deductive conclusions. In sum, they reflect a best attempt at an intellectually honest assessment of the parties’ position, presented in a manner that causes the other side to reflect, not immediately respond.

7. Imagine and address what the other side needs to claim success. If the goal in mediation is for all sides to agree, then that process should begin with developing a mindset of what the other side(s) need to gain approval from their constituents. The author of the seminal treatise Getting To Yes, Dr. William Ury, describes this process as helping the other side “build a golden bridge.” It’s never too early to suggest solutions to a seemingly intractable problem, particularly ones that line up with the other side’s interests. Suggesting these types of solutions may lend itself more comfortably to private brief submittal, rather than sharing with all parties.

8. Don’t overlook negotiation history. Many a negotiation has stumbled out of the starting blocks, if not broken down entirely, when parties have not properly informed the mediator of all historical negotiations. This includes not just the formal exchange of demands and offers, but also any informal discussions that might have shaped expectations coming into the mediation process. An effective mediation brief will include conversations, as well as written or other communications between attorneys or clients, that might impact starting negotiation positions, if not ultimate settlement outcome.

9. Address obstacles to settlement. If obstacles have previously occurred in the form of court delays, an inexperienced judge, or other shared concerns, this information can be included in the mediation brief. If the mediation advocate thinks there are difficult personalities, a challenging client or other sensitive issues, a private statement submitted to the mediator or phone conversation may make sense. 

10. Acknowledge weaknesses. The most effective mediation briefs honestly assess both the strengths and weaknesses of one’s position. The mediation advocate’s goal is to develop trust and credibility with the mediator, and with the other side. What better way to begin that process than to acknowledge a missing piece of evidence, adverse testimony or ambiguous legal precedent? This approach allows the brief to address shortcomings in a way that communicates to others there’s nothing that hasn’t been considered.

11. Propose workable, creative solutions. One of the many benefits of the mediation process is its flexibility and creativity in fashioning solutions that match up with the interests of the client. Mediation briefs that limit their discussion to judicially available remedies alone error by omission and overlook the potential of a win-win result. While being mindful of the propensity for others to reject a proposal simply because it comes from an adversary, it’s imperative that the mediation advocate consider all potential solutions.

12. Develop a well-written brief. The most persuasive arguments begin with a well-written brief. It sounds obvious, but the opportunity to create a positive first impression often comes in the mediation brief. A well-written brief, with attention to clear, precise language, not only advances the argument to its fullest potential but also presents the author and client in the best possible light. 

Mediation advocacy represents the next frontier in training new attorneys to realize their full potential as client advocates. Mediation advocacy begins with a well thought out and crafted mediation brief, one that strikes the right balance of substance and style. Just like those law students in the recent international competition, learning how to write an effective and persuasive mediation brief represents a true art form. For attorneys interested in optimizing results for their clients in a facilitated negotiation, start by mastering the art of mediation brief writing.

The Value Proposition of Mediation; Bringing Success Out of the Shadows

The Value Proposition of Mediation

Conflict is a naturally occurring part of the human condition. Just like the air we breathe and the nourishment we take in, conflict fuels our growth. When managed properly, conflict provides the opportunity for growth and development by requiring us to navigate different perspectives, think more creatively, and broaden our collective vision. Yet, many individuals choose to ignore the “elephant in the room” in hopes that conflict can be dealt with by others or will disappear altogether. 

When unmanaged or left to fester unchecked, we know that conflict can become the single biggest impediment to the growth and productivity of individuals, organizations and governments. It stands to reason, then, that helping others understand the cost of conflict and, equally important, the value proposition of conflict resolution strategies such as mediation, is an essential step toward securing the future of our still nascent profession.

The Cost Of Conflict 

We can’t begin to understand, much less calculate, the value proposition of mediation without first understanding the true cost of conflict. Fortunately, much has been written to help businesses understand the cost of conflict in the workplace. We know that certain conflict-related costs can be identified in a workplace dispute by looking at the following:

  1. Direct Costs. The costs associated with outside counsel, in house general counsel time and support staff, including: paralegals, experts and administrative support. 
  2. Lost Opportunity Costs. It has been reported that senior executives of Fortune 500 companies spend over twenty percent of their time on litigation-related activities. When combined with a conflict’s impact on morale, effective decision making and wasted time, it’s easy to sense how conflict reduces productivity and distracts from an organization’s core objectives.
  3. Lost/Damaged Relationships. Studies have shown that it costs an organization between 150% – 200% of an employee’s annual salary to replace that individual when one factors in recruiting, training and startup costs of a new employee. Even more impactful can be the value of a lost customer, vendor or supplier.
  4. Emotional Toll. Several studies have shown that conflict in the workplace takes an emotional toll on those involved, as measured by increases in sickness and workplace absences. Not surprisingly, this proves true not just for those directly involved in the conflict, but also for others who work on the fringes of the conflict environment.
  5. Affected Company Culture. Conflict has an impact on a company’s reputation with customers, clients and employees. Each one will decide which companies share their values and deserve their current and future business.

Calculating The Cost of Conflict

In an effort to more accurately calculate these and other costs involved in workplace conflict, several “Cost of Conflict Calculators” have been developed to enable business leaders to better quantify the cost of conflict within their organizations. Looking at conflict even more broadly, in 2018 the World Bank reported its study on the economic impact of violent conflict on the countries involved, as measured by dramatic reductions in GDP.

Last year, I was invited to speak to the International Ombuds Association. To address the cost of conflict to their organizations, I suggested that they needed to understand the baseline costs before evaluating options for conflict resolution. Specifically, I suggested they gain the buy in of senior management to look at conflict from one of two perspectives:

  1. For a defined period of time, say one year, attempt to identify the types of conflicts that are addressed by management, general counsel, human resources or ombudsman. Then, calculate both the hard and soft costs incurred by the organization, due to those conflicts.
  2. Or, select a specific, typical conflict within the organization, and perform the same analysis.

Whatever the cost measuring tool or approach the organization uses, only by truly understanding the actual cost of conflict to individuals, organizations and communities, can one begin to see the value of conflict resolution strategies. (We discussed this in detail in a recent webinar, which you can watch here.)

The Value Proposition of Mediation

While much has been done to study and help quantify the cost of conflict in a variety of environments, precious little has been offered to support the value proposition of mediation itself. As mediators, we are well versed in touting the many benefits of mediation: cost effectiveness, time savings, repaired relationships, psychological wellbeing, etc. Yet, when it comes to quantifying these benefits through empirical studies, or even well supported anecdotal evidence, the store shelf is glaringly empty.

Why haven’t we as a profession done a better job of supporting the case for a process that we all know to be extraordinarily effective? The reasons, I suspect, are several fold.

As mediators, we tend to work in the shadows of the legal profession, plying our skills in a confidential environment. When a dispute is resolved, the parties are psychologically predisposed to want to move on, putting all aspects of the dispute behind them. The mediator herself, engaged for a limited purpose, quickly moves on to the next battlefront. Yet, what’s lost is the opportunity to quantify the “savings” to those pulled back from the ledge, however those “savings” are defined.

When several of my colleagues at JAMS successfully mediated the lawsuits arising from the 58 story Millennium Tower in San Francisco that had sunk 18 inches and was leaning an almost equal amount, more than 100 attorneys’ time and several years of courtroom resources hung in the balance. When mediation brought that litigation to conclusion and allowed the building to undergo essential repairs, extraordinary economic if not lifesaving benefits resulted for everyone involved. 

Similar benefits can result from mediations involving banking failures, fire losses, intellectual property disputes and mass tort lawsuits. While these may be extreme examples, every day mediators are taking on seemingly impossible tasks and assisting parties in conflict to reach workable solutions. Doesn’t it make sense, then, to capture the value that participants experience as a direct result of the mediation process?

Quantifying the Value Proposition of Mediation

How can mediators, and others, attempt to better quantify the value proposition of mediation? First, in selected cases and upon successful resolution, we should create the opportunity for the military equivalent of an “After Action Report.” The intervention of mediation in a particular conflict would be carefully examined with an eye toward identifying various objectively-measured savings. This analysis would need to be done in a way to protect confidences. And, there would be challenges in attempting to measure the more subjective value of repaired relationships, regained opportunities and improved psychological wellbeing. 

Yet, this deep dive, post mortem, done while the dispute is still fresh in its potential impact, would provide a veritable library of case-specific benefits, almost a Harvard Business School case study approach to conflict valuation. When viewed through the forward-looking lens of a modified cost calculator, for example, it would afford those involved in future conflicts the data points on which to base important decisions about how to address conflict, including the value of mediation. Imagine the potential application for artificial intelligence if, years in the future, we can look back on thousands of case studies showing both quantifiable outcomes and measurable savings brought about by mediation.   

Second, we as mediators need to do a better job of helping raise the value proposition of mediation in our broader communities, not for purposes of self-promotion, but to bring mediation out of the shadows and into the light of broader acceptance. The same process that favorably impacts family disputes, community disputes and commercial litigation needs to make its way into public discourse and policy formation. Only when mediation has found its rightful place as the intervention of first choice for all manner of conflict resolution, will we have succeeded in establishing the value proposition of mediation.  

Watch the Webinar | The Cost of Conflict

The Vanishing Jury Trial and Other Important Lessons for Mediators

vanishing jury trial

Written by Bruce Edwards

Thirty years ago this past week, I walked away from my partnership in a San Francisco litigation firm to develop a market for a decidedly different approach to dispute resolution, a process called mediation. As I’ve recounted hundreds of times in the decades since, the genesis of my career shift was fueled by a dissatisfaction with the litigation process in its failure to more directly involve the individuals embroiled in conflict. 

As a nascent profession, mediators have made great strides toward redefining how civil litigants in particular approach conflict resolution, while simultaneously witnessing the decline of the traditional jury trial. At the end of last year, amidst the turmoil and upset of the pandemic and national election, a law review article quietly appeared in the Louisiana Law Review entitled “Reasons for the Disappearing Jury Trial: Perspectives From Attorneys and Judges.” In this survey of almost 1500 attorneys and judges from every state and the District of Columbia, Professors Shari Seidman Diamond and Jessica M. Salerno provided the most recent evidence to date in support of the paradigm shift away from jury trials, toward alternative dispute resolution. The takeaways from the article for current practitioners, as well as the next generation of mediation stakeholders, are as clear as they are profound.  

The number of jury trials is dropping dramatically

The authors of this quantitative analysis begin with the observation that “the number of jury trials has dropped so dramatically in recent years in both federal and state courts that the jury trial is an exceptional, rather than a commonplace outcome.” Their survey of civil case filings in federal courts, where the data is most reliable, concludes that, although civil filings have increased fourfold since the early 1960s, “the percentage of civil cases disposed of by jury trial decreased from approximately 5.5% in 1962 to 1.2% by 2002 and to .08% by 2013.”

Similar trends were reflected in state courts: “From 1976 to 2002, civil jury trial rates fell from 1.8% to 0.6% in courts of general jurisdiction in the 22 most populous states.” These trends, and their trajectory into our more current year, underscore what many of us have witnessed firsthand, that the declining role of the jury trial in our litigation environment is as real as it is profound. It’s a trend further exacerbated by the now year-long shut down of jury trials, due to the COVID-19 pandemic. 

A shift toward alternative dispute resolution 

In the years since 2001, when the American Bar Association first convened a symposium for academics and practitioners to better understand the causes of this phenomena, one factor has clearly emerged, the shift toward alternative dispute resolution. What has long been known anecdotally by those of us in the profession has now been quantified and reported in more detail by Professors Diamond and Salerno. 

More specifically, the attorneys and judges surveyed were asked to compare the four primary dispute resolution procedures used in civil cases: “arbitration, mediation, jury trials and bench trials” and rank them in terms of: “predictability, speed, cost effectiveness and fairness.” Perhaps not surprising to those of us in the profession, mediation ranked significantly higher than the other three procedures across all criteria. Additionally, the respondents personally preferred mediation over all other dispute resolution procedures. 

Lessons for the future

What lessons can we draw as mediators from this data, as we continue our lifelong learning in mediation skill development? What trends will emerge for the legal profession in general? How can our mediation profession continue to adapt in the years ahead to this tectonic shift in how conflict is resolved?     

A need for more mediation advocacy training 

The data in the article clearly tells us that future opportunities for advocacy in the legal profession will predominate in alternative dispute resolution forums, particularly mediation, while traditional trial litigation will provide fewer and fewer opportunities for young lawyers. If we accept this proposition, it follows that the next generation of lawyers will need to prioritize training and skill development focused on various forms of ADR. Traditional law school curriculum, steeped in trial practice, should be reexamined and augmented with mediation and arbitration advocacy training. 

For experienced attorneys looking to best deliver winning results for clients, it will be essential to retool their advocacy skills for the unique environment of mediation.    

A lesson for mediators 

As part of their efforts to better understand the reduction in jury trials, the authors explored the pressures exerted on litigants to settle. Specifically, the authors asked those surveyed, “Do you believe (plaintiffs/defendants) are pressured to accept a settlement…” and, if so, “what were the potential sources of that pressure?” The choice of responses included: “their lawyer, the judge, family members, friends, mediators, court staff and business associates.” Most respondents indicated that there was pressure to accept a settlement. What was most surprising was the source of that pressure. 

Across all responding groups, some sources were viewed as significantly more likely than others to exert pressure toward settlement, including mediators. In fact, mediators ranked second only to the client’s own counsel in exerting “pressure to settle.” The authors observed, “The pressure from mediators is understandable in that a mediation that ends without agreement is often characterized as a failure, and the mediator needs to get all of the parties to accept a suggested outcome in order to finalize it.” 

Questions for our profession 

These findings, at a minimum, raise some troubling questions for our profession. 

What happened to the notion that the parties maintain a right of self-determination in mediation? Has our commercially-driven push toward settlement as the predominant indicator of success finally been laid bare? What is the influence of mediators culled from the ranks of retired judges and attorneys on this finding? If this is how we are perceived by attorneys and judges, what must clients in the room be experiencing? These are but a few of the reflective questions we should ask ourselves, as we contemplate the authors’ conclusions. 

The article helps demonstrate the widespread acceptance of ADR, and mediation in particular, in the legal profession. This phenomena can best be described as a sea change in our approach to dispute resolution in the past thirty years. The article also points to lessons for our mediation profession as our systems of dispute resolution evolve further in the direction of mediation, including the imperative for mediation advocacy training. It also provides practice development lessons for mediators, as we continue to work in an environment increasingly viewed as the norm, not the exception. We now have the data to support a continued, rich discussion.  

Virtual Mediation: An Enhanced Process or an Ephemeral Solution?

Virtual Mediation

Written by Bruce Edwards

I recently conducted a Webinar interview with Sriram Panchu, one of India’s leading mediators, on his experience using “virtual” mediation during the Covid-19 shutdown in his country. Mr. Panchu was quick to correct my terminology, suggesting that he refers to his current mediation practice as “enhanced mediation,” given the added value of technology. He said the phrase is also suggestive of a higher quality of communication in his mediations. He bluntly concluded, “I’m never going back to mediating in person.” 

While other mediators have found much to laud about their virtual practices, others long for the days of face-to-face contact and in-person mediation. They wistfully recount stories of long days, shared food and emotional exchange. So what does our collective mediation experience, across cultures and disputes, portend for the future of our profession? What will our profession look like in a post-pandemic world? Will there be a gradual return to more traditional processes, or will the gravitational pull toward a virtual world be too tempting to resist?

Many articles and experienced mediators offer ‘how to” guides on improving the quality of virtual communication and enhancing more meaningful connection with those participating in virtual mediation. Their implicit message is that virtual mediation is here to stay and, like it or not, we must find ways to make the necessary accommodations. Yet, they skirt these threshold questions: What should the appropriate role be for technology as a mediation enhancing tool? And, should we prepare to summarily discard, along with neckties and high heels, what has evolved fundamentally as a human intervention, as we strive for even greater efficiency in remote deal making?

Appreciating the ease and benefits of virtual mediation 

There can be little doubt that the almost overnight shift to virtual mediation has introduced both mediators and clients alike to the ease and benefits of remote dispute resolution. The internet is rife with anecdotal reports of more disputants being able to participate from afar, feeling safe in their chosen environment, and often able to reach agreement in record time. Mediators, meanwhile, offer similarly positive experiences of feeling invited into someone’s home, as they observe the background of trophies, photographs and memorabilia on display. They speak of the human element of seeing young children and pets filtering through, as they peek into people’s lives and forge connections they never thought possible through technology.

Zoom fatigue 

Yet many mediators complain of “Zoom fatigue,” as they tax their brain’s attention span. They struggle to process the visual overload offered by the Brady Bunch-like gallery views or “team vision” created by a single camera in a crowded conference room. Still others complain of the disconnect between sight and sound, as they work to maintain eye contact or process social cues. What was once unconscious social interaction, and taken for granted, has now become the object of great focus and attention. 

Is this an opportunity to hit reset?

Experiences aside, the one thing we can say with certainty is that at some point in the hopefully not-too-distant future, the pandemic fog will lift, and we will need to confront our current situation head-on. Not since the beginning of our still nascent profession have we been presented with such a unique opportunity to recalibrate our professional image and lives. This opportunity to hit reset, while thoughtfully considering the lessons of the pandemic, should not be taken lightly. Much like the pandemic itself, it may present a generational opportunity for accommodation and change. 

I liken this discussion, only on a much larger scale, to the historical debate in our profession about whether mediators should favor in-person joint sessions or alternatively, begin in private sessions. I’ve always approached this question as a false dichotomy and suggested that the only wrong answer is the one that is not well considered, thoughtful and strategic. Moreover, whatever the answer, it must be one that conforms to the needs, interests and expectations of the participants. And, importantly, the mediator’s years of experience and knowledge must count for something, as he or she is uniquely positioned to offer process based suggestions. In the past, these robust conversations, more often than not, put us on the path toward an appropriate process. And when things didn’t work out as planned, we were open minded enough to reverse course and find a more productive path forward. 

The future will have room for both 

I believe that the future will have room for both virtual and in-person mediation. Mediators will need to prepare for an intellectually honest, process-based exchange, in order to help the parties in dispute choose between virtual or in-person mediation. This discussion must be founded in experience, true to our commitment to the integrity of the process and, most important, reflect the needs of the participants. Along the way, we must be wary of our own default settings or other impulses pushing us to agree to a process choice, based on what’s most comfortable or convenient.

What considerations should factor into a virtual or in-person decision?  

As a starting point for any discussion, mediators should help the parties consider the following: 

  1. Type of dispute. Larger, multiparty cases may be more effectively handled in person, while smaller disputes may be just as effectively handled virtually.
  2. Depth of emotion and the importance of repairing relationships. The deeper the connection between the parties in dispute and the greater the imperative to rebuild trust and collaboration, the more important it will be to consider a face-to-face process.
  3. Environmental considerations. Virtual mediation can be used as a means to minimize travel and reduce the carbon footprint of the mediation. How important is this to the participants? The “Mediators Green Pledge” offers guidance.
  4. Hybrid approach. The process options are not binary and may be modified to gain the best attributes of virtual and face-to-face mediation.

Again, there will come a day when mediators and clients will be presented with a choice: “Will we conduct this process in person or employ technology to create a virtual mediation?” When that day comes, it will be incumbent on all of us to be prepared to guide the conversation with a balanced understanding of the benefits and limitations of each, against the backdrop of the specific dispute, and the unique needs of the individuals involved. 

We know that a virtual experience often allows for broader participation, a lower stress level for everyone involved, and statistically speaking, a meaningful chance for a successful conclusion. Yet for many of us drawn to mediation as a process requiring human intervention, the jury is still out on the question of trust and connection. Can a deep psychological connection be forged on screen, where two people can feel seen, heard and valued to the same degree as sitting across the table from each other? Is a deeper connection even necessary, when our virtual experience suggests we’ve been able to go “deep enough” to permit resolution, however that’s defined?

For many mediators, there will be an overwhelming temptation to embrace the success of our virtual experiment and continue on that trajectory. For others, the pendulum will swing back, and they will find a balance between a virtual and in-person practice. There is no right or wrong answer, only an equilibrium, waiting to be found. Just like other aspects of the mediation process, the best mediators will be those who are able, through self-reflection, curiosity and gentle stewardship, to guide others in conflict to the right process for them. The future of our profession will be shaped by how we respond to this moment.  

How to Choose an Online Mediation Course

How to Choose an Online Mediation Course

Since the Covid-19 shutdown and remote working for many, there has been a proliferation of online mediation training courses. While this demonstrates a positive trend toward mediation, it also heralds the need for greater scrutiny and discernment between course offerings. Before you jump at the first course you see, consider the following important criteria when selecting the course that is right for you.

1) Experienced Instructors 

First and foremost, look for those programs taught by instructors with “real world” experience, and the more the better. In a marketplace seemingly filled with professional trainers, nothing will distinguish the herd better than the instructor’s ability to blend theory with practical examples. Rich, practical experience developed through years of mediation will bring the learning to life and ultimately increase the quality of skill development.

2) Substantive and Interactive Learning

The best online programs offer the best opportunity for substantive learning in an interactive environment. The depth of substantive materials may be reflected in part by the length of the course but closer examination also may be required to reveal the true level of content. Moreover, we know from neurobiology that the best learning is experiential, including failure. All too often online courses are long on lecture and miss valuable opportunities to incorporate reflective learning and practical skill development. Focus on content and the interactive approach to learning.

3) Engaging

There is a reason your children find it difficult to separate from their onscreen gaming. It’s called engagement, and the best video games know how to draw the viewer into the virtual experience. Look for courses that have been designed with the assistance of an instructional designer as it will be more likely to keep your attention and promote retention of course material. Online learning must be engaging to bring the student back time and again, eager for more. Anything less promises disappointment.

4) Credentialing

Look for a course that has been pre-approved for certification by an established institution such as a respected university or bar association. Check with your local bar association or courts to learn requirements for mediators in your community and choose a course accordingly. Beware of those courses that promise you will be an internationally certified mediator upon completion or make other unsubstantiated claims regarding post curriculum credentialing. 

5) Long Term Learning

Many courses collect their fee and provide a passcode for a one time engagement. Yet, most online courses represent only the beginning of your career development. Seek out those programs that offer additional resources and demonstrate a long-term commitment to your learning. Whether follow up webinars, “Q&A” sessions, blogs, or personal followup, the best courses are those that welcome a long term commitment and offer ongoing support.

And of course, be sure to consider our online mediation courses, which check the box for all of the criteria outlined above.

Why Mediation Advocacy Training for Attorneys?

mediation training for attou

Written by Bruce Edwards

My friend and colleague, Daniel Weinstein, said it best when he observed, “In a world in which less than 1% of cases end in verdicts, it is surprising that lawyers prepare elaborately for a trial that will never occur, yet feel that the only preparation required for mediation is a good night’s sleep.”

Over the past thirty years, one of the untold secrets among the mediation community is that the quality of mediation advocacy – the ability to present and argue a client’s position, needs and interests in a non-adversarial way – generally ranges from fair to poor. It’s no wonder, when you consider that formal mediation advocacy training has been predominantly overlooked. What training that does exist is primarily experiential, “on the job” learning. While there are moments of creative thinking and strategic behavior in mediation, there are many missed opportunities when evaluating mediation advocacy.

I often ask myself, “Why didn’t this advocate prepare differently for this critical moment, when they have the undivided attention of the decision-makers on the other side?  Why can’t this advocate visualize the impact of their message or approach on the parties down the hall?” Like many other mediators, I spend too much precious time guiding advocates through challenges that they have predominantly created themselves.

Mediation Advocacy Training is a Crucial Step

Although mediation has developed and grown over the past several decades in the U.S., attorney education has remained primarily focused on litigation advocacy. Yet, alternative dispute resolution is here to stay. Mediation advocacy training is now a crucial step toward developing the broadest range of skills for attorneys who are looking to achieve winning results for their clients. For too long, litigation and mediation advocacy have been viewed by many as a binary choice: you were a skilled advocate in one, but not both. This choice is a false dichotomy. Litigation advocates must pursue, with equal vigor, the skills required to develop mediation competency.

I’m fond of telling mediators and lawyers alike that the real danger in life lies in not knowing what you don’t know. For many individuals in the world of mediation, this statement couldn’t be more indicative of the challenges we face. When we pull back the curtain on mediation advocacy, most attorneys quickly appreciate both the uniqueness of the process and the importance of the skills required to engage successfully.

Embracing Mediation Through Better Understanding

There is another compelling reason to provide mediation advocacy training for attorneys, one that is especially critical in emerging mediation markets: achieving acceptance of the practice itself. Thinking back to my early years of promoting mediation here in the U.S., attorneys were the most important stakeholder group to engage, while they also put up the most resistance. 

Fast forward to recent times. As I teach mediators and assist governments in other countries to successfully implement mediation in their judicial systems, I’ve come full circle. I’m again confronted by attorneys who resist mediation, based on their fear of the unknown, economic uncertainty or other reasons. Their resistance impedes acceptance of a culture of mediation in their communities. 

Assisting local mediators in engaging these attorneys through mediation advocacy training may be the best way to break down their resistance. Mediation advocacy training offers attorneys the opportunity to reimagine their career trajectory. By embracing mediation through better understanding and then building mediation advocacy skills, they can separate themselves from their peers and deliver winning results for their clients.

Earlier this year, in our ongoing efforts to support the development of the mediation community in Rwanda, we offered our first training on mediation advocacy for attorneys. Working closing with the Rwandan Bar Association, we addressed over seventy-five attorneys, educating them on the mediation process and specific skills in mediation advocacy. The result was overwhelmingly positive. We are looking toward replicating this experience in the months ahead, working with attorneys in India, Brazil, Mexico, Zambia and The Republic of Georgia. 

We Need to Formalize and Institutionalize Mediation Advocacy Training

At Edwards Mediation Academy, we believe that the long term success of mediation in the United States and other parts of the world depends on the acceptance of mediation, as well as building the attendant skills of mediation advocacy. In pursuit of this goal, it’s simply not enough to let learning evolve organically through “on the job” experience. Instead, we must formalize and institutionalize mediation advocacy training for lawyers around the world, if we hope to prepare the mediators of tomorrow. Too many lawyers sit comfortably in the doldrums, waiting for the winds to change. Mediation advocacy training for attorneys will help them learn to adjust their sails.

 

 

A Time of Self-Reflection and Change

My season of self-reflection began dramatically: the JAMS office administrator marched into the middle of my two-day mediation and alerted everyone that the Mayor of San Francisco had just announced she was ordering the shutdown of all nonessential businesses. This effort to thwart the spread of COVID-19 heralded the onset of our new reality, sheltering in place. 

Over the ensuing days, my time was spent on conference calls, Zoom tutorials, and a gradual transition to virtual mediation. I naively believed that these lessons represented all that the universe had in store for me. Little did I know what opportunities for genuine self-reflection lay ahead.

Redefining Community

Several weeks into self-isolation, I had the privilege of conducting a webinar interview of my friend and colleague, David Carden, former U.S. Ambassador to the Association of Southeast Asian Nations. The occasion was the first virtual assembly of the Weinstein International Foundation for 75 Senior Fellows, mediators spread across the globe. 

The topic of the day was lessons we can learn from the pandemic. The discussion was led by Ambassador Carden, the very man who had advised former President Barack Obama and the National Security Council on the risks posed by a pandemic. In his response to questions, David proposed that going forward, we must think more broadly about how we define community. While it’s understandable that fear drives many to close ranks, shut borders, and build thirty-foot walls, we live in a world of thirty-two-foot ladders. 

Moreover, the challenges of tomorrow: climate change, human migration, wealth disparity and pandemics, cannot be contained by geographic or physical borders. He capped his powerful message by saying, “It’s long past time for all of us to recognize this truth: we have too long cared more for the moment than we have for the future; more for ourselves than we have for those to come; more for power, privilege and wealth than we have for belonging, becoming, and building sustainable lives.”

His reflection was clear: how we define community must be forever changed. The existential problems of tomorrow can only be addressed by all of us, coming together, recognizing our common interests, and acting as members of the global community. 

Interconnectivity

As the days of sheltering in place stretched into weeks and the weeks into months, the novelty of our commitment began to wear thin, replaced by feelings of isolation and loneliness. Yet, with those sentiments, another opportunity appeared for self-reflection and learning. 

We know from neurobiology that one of our most basic human needs is connection with one other. The idea of interconnectivity, that what a person does one day in Wuhan, China can have profound and far-reaching consequences in the ensuing weeks in Milan, New York City or Moscow, has never been more apparent. Also, that our actions of sheltering in place, wearing face masks, and social distancing protected not just our friends and family, but also strangers that we might never know. And for the first time for many, this opened our eyes to our human interconnectivity.

Through the shelter in place moments, we longed for a deeper connection with each other. Who can forget the images of a small town in northern Italy, with neighbors out on their balconies toasting each other with wine goblets from afar and singing songs in unison? In Marin County, where I live, each night at an appointed hour, people walked into their yards and raised their voices to the moon to share in a community of sound. Though Zoom conferences brought us into each other’s homes as never before, still missing was the ultimate human connection: a comforting touch or a warm embrace.

As I reflected on this issue of human connection, I thought of a mediation I conducted years ago involving a man who had been horribly burned and disfigured in an industrial explosion. During the opening session and in front of an assembled audience of dozens of attorneys and insurance adjusters, I asked this man what had been the most difficult part of his pain-filled ordeal? As tears streamed down his scarred cheeks, he said to me, “Mr. Edwards, no one touches me anymore.”

Our need for connection runs deep. It lies at the core of our humanness. It is a truth laid bare by extended isolation. Ironically, a striking symbol of the importance of connection had been with me for many years. Hanging on the wall in my office is a hand drawn portrait of the Reverend Desmond Tutu, artfully created by my friend, Tom Stipanowich at Pepperdine. Under the drawing of Reverend Tutu appear his words on the importance of our connectivity, “We are different precisely in order to realize our need for one another. My humanity is caught up, is inextricably bound up, in yours.” More timely and insightful words were never spoken. 

Black Lives Matter

Over Memorial Day weekend in Minneapolis, Minnesota, events unfolded that would shake this country and reverberate around the world. I refer, of course, to the brutal murder of George Floyd, an unarmed black man at the hands of a white police officer. Police, responding to reports of an African American man allegedly passing a counterfeit twenty-dollar bill at a local business, somehow ended with Mr. Floyd in handcuffs, face down on the street pavement with an officer’s knee pressing on his neck. For the next nine minutes, in a video captured on a bystander’s cell phone, the world saw a scene that will be indelibly inked in our social conscience forever: Mr. Floyd being stripped of his dignity and robbed of his breath. His last words of, “I can’t breathe,” soon became the clarion call for protestors around the world, demanding an end to racial injustice and systemic racism.

The simple statement, Black Lives Matter, forced many in the white community to confront our thinking on race and, more specifically, our potential complicity in racist institutions. It was there for all to see. This simple slogan sought to encapsulate decades of hate, bigotry and despair. 

These words, Black Lives Matter, should not be followed by a question mark. Instead, they should herald a potential tipping point in our collective conscience, as many of us who have benefited from “white privilege” are challenged to look deep into our hearts and souls and confront our prejudices, both overt and implicit. Ultimately, we each need to ask ourselves how we can become part of the change this country so desperately needs.

Dr. Martin Luther King famously said, “In the end, we will remember not the words of our enemies, but the silence of our friends.” To reflect on the events of these past few weeks is to come away with a profound sense of injustice and a call to action. The lesson is clear: we can no longer afford the complicity of silence. It’s no longer enough to be a non-racist; we need to actively become anti-racist.

A Call to Action

There is a new wind about and with it, a historic opportunity to move from thought to action. My father used to say, “The road to hell is paved with good intentions.” We all need to look within ourselves, acknowledge without fault how we have gotten to this moment, and commit to taking action in our homes, businesses, religious institutions and communities. As dispute resolution professionals, we have unique skills to offer our communities in managing the difficult conversations and moments ahead. 

For example, we could:

  • Lead a reflective discussion group about race with our social or business peers.
  • Volunteer to train de-escalation techniques and dispute resolution skills to community organizers or police departments.
  • Mentor a minority professional and, in hiring, look to make our office reflect our broader community.
  • Teach a course on implicit bias at our local church, synagogue or mosque.

It’s simply not enough to applaud the National Football League for its long-overdue support for social justice or NASCAR’s efforts at inclusion by banning racist symbols from NASCAR events. We all need to reach out to people of color and make a meaningful connection. We also need to prioritize reading books and watching movies that describe black lives and historical abuse. Only then can we draw on the compassion and empathy that brought us to this profession in the first place, and in so doing, model the behavior needed to counteract the corrosive impact of systemic racism.

The Change Is Within Each of Us

For some, my commentary may come as a surprise. Why my deviation from traditional offerings on mediation skills development? The answer lies in the opportunity presented by recent events. The events of these past few months, and their impact on all of us, are too important to ignore. We have an unprecedented opportunity for self-reflection, an engraved invitation to reexamine old ways of looking at the world and each other. The choice is now up to us. We are at a moment of inflection in our lives. None of us can predict where this will end, but perhaps that too is part of the lesson. 

Together, we have the opportunity to shape our collective vision and destiny. Together, we have a chance to confront the sins of the past, while tackling the challenges of the future. Along the journey, I will comfort myself in the words of Maya Angelou, who reminds us that, “We are more alike, my friends, than we are unalike.” 

Imagine if we awoke from this confluence of recent events with a clearer vision of what unites us, rather than continuing to bear witness to what divides us. Imagine, years from now, looking back on the summer of 2020 as this generation’s moonshot toward ending racial injustice. My hope for each of us dispute resolution professionals is that from these reflective moments, we learn to access our humanity and find ways to raise up those around us, and in so doing, become a better version of ourselves.

Finally, to all those who have gone into the world these past few months to provide health care, support those in need, or demonstrate against systemic racism and abuse, a heartfelt thank you from everyone at Edwards Mediation Academy.