The use of mediation in connection with civil disputes seems to be alive and well in Connecticut judging by a number of indicators:
• More and more litigators are demonstrating proficiency in the process and expressing less resistance to participating.
• Transactional lawyers are building mediation into multistep ADR clauses inserted into contracts.
• The Connecticut Judicial Branch has stepped up its use of mediation as evidenced by use of mediation trainings and the creation of Mediation Centers.
• Establishment of ADR practice groups in a number of law firms and the departure of some highly respected judges, skilled at mediation,to join these practice groups.
• Increased use of mediation in a number of specific specialties. For example, it has become deeply entrenched in the practice of family law.
• Expansion of collaborative dispute resolution from the family arena to the business disputes.
• Establishment of the Connecticut Mediation Association.
• Continued reliance on community mediation services.
As practitioners shift up to an expanded use of mediation and as increasingly sophisticated mediation nuances emerge, lawyers are faced with a wider range of decisions concerning how to proceed. This article seeks to identify just some of those decisions, questions and issues and to provide some brief—and admittedly extremely overgeneralized—considerations for best practices.
Because there are so many issues to consider, these suggestions are presented in two parts. Part one involves some of the critical decisions to be made at the beginning of the process and part two examines issues arising during the mediation session itself.
Deciding Whether or Not to Use Mediation
A. In some cases, the decision as to whether to use mediation is made, often long before a dispute erupts, in the dispute resolution clause drafted in the contracts of the parties. Increasingly, counsel are utilizing a multistep dispute resolution clause whereby negotiation and then mediation are required before an adjudicatory process such as arbitration is utilized. In some instances, mediation is identified as the initial dispute resolution process of choice.
B. If the disputants are not contractually required to utilize mediation for their dispute, the decision as to whether or not to attempt mediation becomes an ad hoc one. The basic answer here, I would submit, is that unless there is a meaningful reason not to employ mediation, it should be the initial dispute resolution process of choice. Its benefits of party control, attention to party interests rather than positions, minimal risk and confidentiality are powerful. Classic exceptions to early use of mediation include the need to establish a legal precedent, the need to obtain an immediate court injunction, or unwillingness to engage with an erratic party.
When to Initiate Mediation
While mediation may be employed at any time in the dispute resolution process, including on the eve of trial, early use offers a number of advantages, not the least of which is avoiding substantial costs. While some argue that too early use of mediation can put a party at a disadvantage because of insufficient basic discovery, it must be recognized that the mediation process when conducted properly allows for substantial information sharing and gathering. Moreover, the earlier mediation is attempted, the less likely that positions will have hardened making an ultimate resolution unlikely.
Who Should Initiate Mediation
When a mediation is undertaken on an ad hoc, rather than contractual basis, an early stumbling block sometimes involves just which side will suggest mediation. The urban myth of mediation is that the party suggesting mediation signals a sign of weakness and will be thought to have “blinked first.” With growing utilization and sophistication about mediation, it is surprising that this argument is still heard, but unfortunately it is.
Counsel should inquire as to whether or not there is any industrywide protocol or pledge to use ADR in the business in which the disputants are involved. If not, counsel—having an obligation to advise their clients of ADR options—will often find that the client will suggest a mediation use and that can be reported to the other side.
How to Prepare the Client
While mediations have become much more common for lawyers, they still can be quite a mystery for the client, even the sophisticated corporate representative. Counsel should give the client a thorough briefing as to the goals of mediation process as well as the actual process to be followed and the events that are likely to unfold during the day. Clients are told that the other side is coming and that the presence of the other side signifies an intent to settle. Yet clients often get confused when the other side takes harsh or extreme positions. “I thought they wanted to settle, why did I come.” The client needs to be briefed on the negotiation process and be prepared for what is sometimes perceived as insulting offers and demands. Further, the client must be prepared for the inevitable “downtime” during the mediation when the mediator is meeting with the other side. Without proper prior explanation, the busy client may perceive this downtime as wasted time. Most important, the client must be prepared for the impasse, which often develops after some early negotiation success and should be cautioned to expect the impasse.
Who Should Serve as Mediator?
A number of factors are often considered in deciding whom to retain as the mediator.
Among some of the questions to be pondered are:
• Need the mediator have subject matter experience and detailed prior expertise and knowledge in the issues involved?
• Should the mediator utilize a facilitative or evaluative style of mediation?
• Should the mediator be a former judge?
The selection should depend on the dispute at hand and the specific issues involved. While subject matter expertise is not always essential, an extremely complicated, technical or industry-specific dispute might be resolved in less time if the mediator does not need a long learning curve.
As a general rule, however, process expertise and negotiation skills are more important than subject matter expertise.
The decision as to seek a facilitative or evaluative style is somewhat illusory as most mediators employ a combination of both. It is a rare mediator who can keep from signaling some opinion at some point during the proceeding. After all, a mediator is often thought of as a reality tester and thus must use many skills and techniques to ground the parties in reality.