X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Many attorneys believe the mediation process amounts to little more than a tenacious mediator verbally bludgeoning a client into submission to get a signature on a settlement agreement that the client will regret later. Those who hold this less than favorable perception of mediation probably do so because of an unfortunate personal experience. Although it is true that some mediators who utilize strong-arm tactics have high settlement rates, there are alternative mediation styles that can result in equal or greater settlement rates while minimizing the client’s post-settlement remorse. One alternative style blends the principle of empowerment of the parties with the subtle infusion of the mediator’s influence. This style of mediation frequently uses a technique referred to as “leading from behind” and is taught in leadership and mediation training programs around the world. Many of those who teach and practice the principles of leading from behind do so as though it is a modern, proprietary idea. In fact, it is one of the many ancient teachings of Zen Buddhism. According to Zen teachings, a leader is more effective if he or she, through mere influence, is able to lead the followers in such a passive way that the followers choose the course of conduct that is desired by the leader. Attorneys who are knowledgeable about this mediation process can more effectively represent clients in mediation. This knowledge also increases the likelihood that the mediation will result in a settlement and that the client will be satisfied with both the outcome and the attorney’s representation. Mediators who practice the leading-from-behind method frequently utilize a two-step process. The first involves the empowerment of the parties. Before a disputant can be led in the direction necessary for resolution, he or she must understand that the power to resolve the conflict lies in his or her hands. In practice, this is one of the early hurdles for the mediator to overcome. Many litigants walk into the mediation believing that the conflict is solely the result of an act or omission of the other side; therefore, the other side is solely empowered to resolve the conflict. Because they believe all empowerment for resolution rests with the other side, they also believe their only power is the power to say “no.” Unless, and until, the mediator is able to lead a party to the conclusion that he or she has the power to resolve the situation, the most likely answer the mediator will get in response to every settlement overture is the predisposed answer of no. Mediators use a number of techniques to instill the belief of empowerment in a party. This may include an opening statement at the mediation that stresses the parties’ control over the process. However, a mere statement that the parties are empowered is rarely enough. The statement may need to be repeated many times, and in different ways, while the mediator actively reinforces the statements with nonverbal cues. Nonverbal communication from the mediator that helps convey this sense of empowerment can take many forms, including hand gestures, posture and something as simple as where the mediator sits. For example, the mediation room might be arranged so that the mediator does not sit at the head of the table. With the mediator at the head of the mediation table, some might consciously or subconsciously conclude that the mediator is the person in a position of power rather than the parties. By the same token, placing one of the parties at the head of the table could confer a sense of empowerment to that person. That could also leave the other party feeling a lack of empowerment and increasing the burden on the mediator to try to instill that sense of power. It is not uncommon for some attorneys to start the mediation day by stating they don’t think the matter is going to settle, “so let’s find out what the other side is demanding or offering right now so we can see if we are wasting our time.” Such remarks often reflect an attorney’s personal experience with the opposing party or counsel. But comments like these also ignore the fact that if the dispute at hand could be easily resolved, there would be no need for mediation. For mediation to be successful, the parties and attorneys must afford the mediator the time to practice his or her art, building a foundation of rapport with each party, instilling a belief of empowerment and then going through the process of helping to lead the parties toward a resolution. The second step in the process tests the mediator’s skill at leading from behind. Many mediators use a combination of questions to help lead the parties toward a resolution. Although some attorneys prefer that the mediator not put questions directly to the parties, this practice may be counter-productive. Preventing the mediator from asking questions will likely hamper his or her efforts and reduce the likelihood of settlement. To the attorneys, some of the mediator’s questions may seem completely unrelated to the dispute. In fact, some questions are legally irrelevant and are intended to be irrelevant. Frequently, a mediator’s questions are intended to establish rapport with a person more than to obtain answers relevant to the dispute. Without rapport, it is unlikely the mediator will be able to instill a feeling of empowerment. Without rapport, it will be almost impossible for the mediator to lead a party toward resolution. For example, if the mediator asks, “How did that make you feel?” it might be intended to subtly communicate the mediator’s interest and empathy rather than to elicit substantive information from the person. Although probably not legally relevant, the answer to a question such as “what do you intend to do with any recovery you obtain in this matter?” may tell the mediator a lot about what is motivating a party. The answer to such a question could open the door to exploring different resolution options that meet that party’s interests. Sometimes a mediator may need more than questions to help in the process of obtaining a resolution. The mediator may resort to giving the parties suggestions to help guide their decision-making process. The method used to communicate the suggestion will determine the success of the mediation process. Although an evaluative style (also known as “settlement conference” style) can be effective, most facilitative mediators prefer to avoid overtly injecting their opinions into the process out of concern that the parties may sense a loss of empowerment. Doing so could give rise to a party’s perception that what the mediator thinks is more important than what that party thinks. This is not to say that the facilitative mediator does not express opinions, only that he or she may do so indirectly by the use of “affirmation.” Affirmation may include what other people have done, or might do, in similar circumstances. For example, the mediator may say, “I have been told that in a very similar instance, the parties did XYZ with good results.” Many people find comfort in knowing that someone else has already done what they are being asked to do. By sharing with a party what others have done or may do under similar circumstances, the mediator may help lead the person to an acceptable conclusion. By being aware of these important concepts, attorneys can enhance their clients’ mediation experiences and increase the likelihood that a meaningful resolution can be achieved. Before a mediation begins, attorneys should take the time to find out about the mediator’s style. Most mediators welcome such inquiries and the opportunity to share their mediation techniques. The mediator should also be allowed the time to build rapport with each of the parties. Attorneys can also encourage their clients to respond directly to the mediator’s questions. Even if the attorney does not believe the dispute can be resolved, patience will allow the mediator a full opportunity to methodically pursue the process of finding out what can be achieved. By employing a blend of questions and affirmation, the mediator may be able to lead the parties to a decision that is acceptable and that will resolve the conflict. Because the decision is the result of the party’s own empowerment and decision-making process, it is more likely the client will be happier with the resolution, the mediation process and the attorney’s representation in the process. And it all comes about due in part to fundamental teachings and practices of Zen Buddhism that date back thousands of years. Paul W. Taylor is a Silicon Valley-based mediator and arbitrator. He also works in an of-counsel capacity at Hefner, Stark & Marois in Sacramento.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.