In late September I had the privilege of speaking with Jason James in a presentation to the NCBA Construction section. Preparing for this discussion with Jason was both a pleasure and very informative. Although our charge was to discuss the broad topic of mediation, we quickly focused on a question that rattles around in my brain every time a mediation does not “succeed.” For anyone who has worked with me, you know I do not have a binary definition of success and failure.
The question that recurs in my thinking is whether mediation — as successful as it is — could be improved. Or at the least, expanded. What made this presentation particularly useful and enjoyable was that our audience was (by my estimate) 80% trained and certified mediators. As a result, our presentation was more of a discussion than a lecture.
The ultimate question is whether the default model for mediation (i.e., engagement of a neutral for a single — sometimes marathon day) is the best we can do. In 2020 we all learned that we did not all have to congregate in the same location to conduct a mediated settlement conference. This insight, coupled with the insight provided by the Guided Choice paradigm together with the advance of collaborative law principles, suggests that mediation need not be one size fits all.
Here is an example of an alternative process to illustrate the point. In a recent multi-party mediation involving dozens of issues, the parties came together for a pre-litigation settlement conference. After a long day of educating the mediator, followed by traditional bargaining, it became obvious that the Defendants needed far more factual information in order to evaluate their risks. We adjourned the mediation and scheduled a second day devoted solely to a discussion of each pending change order or backcharge (the lawyers were present but figuratively gagged). After a very productive exchange of information, a third day is scheduled for a more productive (hopefully) negotiation.
This is just one example. Guided Choice suggests early retention of a neutral who is engaged to, among other things, guide the parties on process. The collaborative law process encourages, among other things, the sharing of all information necessary to make informed decisions without scorched earth discovery. Zoom and other on-line platforms allow us to conduct settlement discussions more productively in an asynchronous manner. Combining all these, and more, provides flexibility to conduct the mediation at the right time and with the right information to make better and more informed decisions.
The mediation default we have all used for the past decades may still be the appropriate model for most mediations but in the world of mandatory pre-litigation mediation, multi-party, multi-issue, multi-discipline mediations, it is certainly worth considering an alternative process.