When Is the Right Time To Mediate?
June 2009
For many years, I, like many other
mediators, answered the question of when to mediate something like this:
"It's always the right time to mediate. The cost is modest compared to the
overall legal fees, so if there's even the slightest chance of settlement,
mediation is a good bet. Plus, even if you don't settle, you learn a lot
along the way."
by Jeff
Kichaven
Professional Mediation
& Arbitration
As time passed, this answer grew hollow to me. Mediation involves time,
money, and inconvenience. It isn't always worth it. I became concerned that
questioners would feel suspicious that I was trying to generate fees
regardless of whether I was truly adding value.
Identifying When
We need a better answer. Can we define those challenges which mediation
is uniquely able to address? If we can, then when those challenges emerge,
and you identify them correctly, you'll know the time to mediate is right.
To identify the challenges that mediation is uniquely able to address,
perhaps we can learn from the great healing profession, medicine. A profound
new book by George F. Blackall, Steven Simms, and Michael J. Green,
Breaking the Cycle: How to Turn Conflict Into
Collaboration When You and Your Patients Disagree (American College
of Physicians, 2009), gives us significant direction. Blackall, Simms, and
Green describe systems of interactions between physicians and patients that
are analogous to the interactions between lawyers and clients. Typically,
the systems work well. Sometimes, they don't. When they don't, and lawyers
need help to meet that challenge, mediators can provide it.
How does the system look when it works well? In the medical context, it's
simple. There is an external problem (illness, injury) with which the
patient must deal. The patient comes to the physician and views her as the
"expert." The physician accepts the role, reaches a diagnosis, and
prescribes a treatment. The problem is resolved. The patient feels better,
with acceptable levels of cost and pain.
For lawyers, it is no different. When the system works well, the client
has an external problem (he may need to sue someone, someone has sued him),
comes to a lawyer and views her as the "expert." The lawyer analyzes the
situation and recommends actions. The problem is resolved. We win, they
lose, with acceptable levels of cost and pain.
Of course, it doesn't always work that way. Sometimes, despite all
reasonable efforts, the external problem does not get resolved but persists
or increases. The lawyer might take depositions that do not yield the
expected testimony or bring a motion that is denied. The likelihood of
"winning" shrinks, and the need to settle grows. Sometimes, the client
accepts the disappointment and adapts or adjusts. Other times, though, the
client becomes ever more demanding. "It hasn't worked yet. Do more! DO
MORE!"
The Symptomatic Cycle
Here, what Blackall, Simms, and Green call "The Symptomatic Cycle" can
take over, with unfortunate results. In the professional's eyes, the
"symptom" to be addressed is no longer the external medical or legal problem
(after all, what is likely to work has already been tried), but rather the
client's escalating demands to "Do More!"
Sometimes, the professional just doesn't know what to do. Still more lab
tests? Still more discovery? The professional knows these acts are unlikely
to help. But what are the choices? If she tries stronger tactics with her
client—such as better or more forceful arguments, to control the demands to
"Do More!"—she will likely generate increased resistance, not acceptance. If
the professional acquiesces in the demands, though, she will feel
unprofessional, maybe even unethical. All that is left for many
professionals is to feel frustration, powerlessness, and failure. When this
happens, the professional's next step could be defensive, an emotional
withdrawal. Phone calls go unreturned. Meetings are dreaded. Thinking about
the case is avoided. The professional can find the demands so frustrating
that she starts to blame the patient or client for his own suffering. "He
just won't listen to me."
Patients and clients, though, are alert as well as demanding. They sense
the professional's withdrawal, and in response, they feel abandoned,
betrayed, and isolated. Their demands are likely to grow more strident as
the professionals seem less responsive. "Why won't you
please just give me the help I need?"
In this "Professional-as-Expert" model, there's nowhere to go. There is
nothing more the professional can do to deal with the external problem
effectively. There is no end to the client's demands to "Do More!" According
to Blackall, Simms, and Green, once a client has turned to the
professional-as-expert, the client has inadvertently excluded himself from
the problem-solving loop. The focus of so many conversations between lawyers
and clients (as between physicians and patients) is exclusively on how the
expert should or should not try to solve the external problem. The client
sits back and waits. It's an impasse. Lawyers can't negotiate settlements
when their clients refuse to take their advice. But continuing with
ineffective, expensive litigation is wasteful and futile. It's terrible.
Fortunately, though, it's not completely hopeless.
Identifying Why and How
The physician has nobody to call for help. But the lawyer is in luck. If
a lawyer can't deliver the solution the client initially wants (we win, they
lose, fast and cheap), and an impasse emerges, it's the right time to
mediate.
Mediation is a powerful tool to deal with clients' external problems and
get cases settled. The great paradox of mediation, though, is that mediators
help clients resolve their external problems by also addressing and
clarifying lawyers' and clients' intramural differences regarding the
results litigation is likely to achieve. That is why so much of commercial
mediation takes place in private caucuses, where the mediator meets
separately with the respective sides. In those caucuses, the mediator
provides an important supplement to the lawyer's own work.
The professional mediator can function as "collaborator" rather than
"expert." When a mediator does so, by definition, he declines to accept full
responsibility for solving the client's problem. That responsibility remains
shared with the client. Indeed, there is nowhere else for it to go. To do
this, the mediator may first confirm and support the lawyer's expert advice
regarding litigation's likely outcome, risk, and cost. The mediator then
allows room in the conversation for the client to contribute his internal
resources and devise new ways to adapt or adjust to the disappointment that
the likely outcome will bring. Then the case can settle. But whether cases
settle or not, this new understanding almost always increases clients'
appreciation of their lawyers' work, and strengthens the bonds of the
lawyer-client relationship.
When allowed to do so, clients discover all kinds of ways to bridge the
gap between the results they want and the results their professionals can
actually deliver. Clients can imagine their relief at achieving finality and
eliminating the inconvenience, delays, and costs of further litigation, or
sense the possibilities of moving forward with their lives and careers,
perhaps even restoring business or personal relations with their current
litigation opponents. Coping and resilience can take many forms.
The impasse may be between you and your client, or it may be between
another lawyer and client. It's generally not hard to notice when another
lawyer and client are out of sync. Those other lawyers may be reluctant to
suggest mediation because they fear it will leave their clients feeling
further abandoned, that they are about to be "dumped." But these same
lawyers may welcome the suggestion coming from you. Your suggestion of
mediation may be less likely to arouse their clients' anxieties. And, if the
mediator's work with the other lawyer and client helps your own client reach
an advantageous settlement, then your suggestion has served your own
client's interests well.
Blackall, Simms, and Green have advice on how to give clients this help.
For the professional-as-collaborator who wants to draw out the client's
internal resources, the focus is on relationship-building rather than
problem-solving, and the conversation has the following four themes.
Acceptance
Allowing a client to have their feelings, even when those feelings don't
please you. The professional-as-collaborator does not try to get a client to
change his feelings.
Respect
Listening to the client, validating his
concerns, taking what he has to say seriously.
Curiosity
As Blackall, Simms, and Green put it, "Asking (yourself) the simple
question, 'What would a curious person do in this situation?' sets the stage
for the (professional) to migrate away from controlling behaviors."
Honesty
Turn your own negative feelings to a productive end. Blackall, Simms, and
Green suggest questions such as, "I find this situation frustrating too. How
do you think we can move toward finding a solution?"
Conclusion
These approaches—common among professional mediators—will inevitably lead
clients to new thinking. "Remaining curious," Blackall, Simms, and Green
write, "as opposed to controlling, will lead to unforeseen discoveries." So
supported, clients come to appreciate how far their lawyers have brought
them and discover all kinds of internal resources which take them the rest
of the way toward acceptance of the admittedly imperfect settlements their
lawyers recommend.
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