Mediation Through the Eyes of a trial Attorney... repordted by Isa Lang
An experienced business lawyer, Scott Gilmore, devoted several years to learning mediation skills at the Straus Institute for Dispute Resolution at Pepperdine Law School after serving as Managing Partner of Hill, Farrer & Burrill. Currently, he continues to practice law and is also an active mediator. His presentation on mediation reflected his expertise as a transactional lawyer, a litigator, and a business executive.
Introduction: An "Irreverent" View of Mediation
By his own admission, Mr. Gilmore has an "irreverent" view of lawyers in the mediation process, although I would call it a "practical" view instead. He believes that lawyers do not value the mediation process and are impatient to get to a monetary settlement. They are reluctant to give pre-mediation information and are not thorough in documentation.
According to Mr. Gilmore, a good mediation is a voluntary process, assisted by an acceptable third party, that results in a mutually acceptable settlement. It should begin with a determination of the type of mediation that will occur. This part of the mediation process is called convening.
Convening: Planning the "Right" Mediation
Given the cost of mediation, the parties should plan their mediation with care. The following factors enter into the planning process: timing, mediator style (evaluative vs. facilitative); length of the mediation; and possible attendees. Mr. Gilmore believes that the convening period gives the parties time for a thorough exchange of information, possibly the most crucial determinant of a successful mediation.
Mr. Gilmore stated that characterizing a mediator as either and evaluator or a facilitator is unrealistic. Often, a mediator moves from one style to another over the course of a mediation. Initially, he/she may be an evaluator, questioning the parties and giving opinions based on the facts presented. Then he/she may begin facilitating by focusing on the parties and moving toward a reasonable settlement range. He noted that retired judges who mediate may be more evaluative and controlling because of their mindset as judges.
Exchange of Information: Joint Sessions and Caucuses
In addition to the pre-mediation information exchange, which may or may not include written briefs, a mediator may call for joint sessions or caucuses. At a joint session, both parties are given the opportunity to tell their stories. In contrast to a joint session, a caucus allows the mediator to meet separately with each party.
Mr. Gilmore described one type of joint session in which the mediator hears each party's story. Following the story, she repeats what she thinks the party related. This type of joint session is helpful in that it allows each party to "vent" as well as making a record of the conflicting viewpoints. However, the parties can get emotional or feel threatened in a joint session.
Caucuses allow the parties/mediator to respond to points made in the joint session. They may also build trust between the parties and the mediator, resulting in a smoother negotiation stage. Mr. Gilmore views the caucus as an opportunity to discuss a potential settlement range.
Negotiation: $$$ are the "Bottom Line"
To my mind, this was the most amusing and informative part of Mr. Gilmore's presentation. We had been hearing about mediation "in theory" for most of the Institute; now it was time to get down to business. First, Mr. Gilmore gave us examples of the distinction between the perception and the reality of mediation from a book called Making Money Talk by J. Anderson Little. The reality of negotiation is that it is basically traditional bargaining. So, after all the fancy preliminaries, the parties end up at a sophisticated garage sale!
Nonetheless, the mediator can perform a useful function in the bargaining process by nudging the parties through the numbers and controlling the "dance," as the mediators call it. The "facilitating" mediator may again become an "evaluator," letting a party know whether he/she made a reasonable offer or counter-offer. Caucuses may be useful at this point because the mediator can discuss an offer openly with each party. When "the dance" stalls, a mediator may engage in "bracketing." Mr. Gilmore's example of bracketing is an offer to go to $30,000 "if you go to $100,000." Bracketing establishes a ceiling and a floor, making settlement a realistic possibility.
Closing the Deal: What Really Counts?
In moving from negotiating to closing, a mediator sometimes focuses on interests rather than "how much." For example, an important interest in a commercial mediation is the possible destruction of a good business relationship. This type of interest may motivate a party to settle even more getting a "deserved" settlement amount.
According to Mr. Gilmore, attorneys and their mediator can rush to "close the gap" as the hours grow late in a mediation. A patient lawyer and mediator, Mr. Gilmore expressed his disapproval of such "leaps," criticizing the "mediator's proposal" in particular. He believes that mediators should not respond to requests for "a number" unless there is an utter impasse.
Mr. Gilmore's rules for winding up a mediation are to get a signed settlement memorandum and a draft agreement in an agreed-upon form. The agreement should include a clear statement of monetary terms; releases from liability; and a statement that the settlement agreement is enforceable thus assuring its admissibility in court under case and statutory law.
Conclusion: A Well-Balanced Presentation
Throughout the Institute, I was struggling with the difficulties for attorneys, especially those who also practice, to become mediators. Law school and professional ethics emphasize the adversarial nature of law practice and the importance of advocating for your client. How can this be reconciled with the facilitative and evaluative roles of a mediator?
Mr. Gilmore's presentation addressed these difficulties. He looks at each legal conflict in a transactional way, whether it is a trial, mediation, arbitration, or a "deal." In any transaction, each party comes to the table from a different place. The goals of both attorneys and mediators are to ensure that all differences are resolved at that table in the most equitable way.
Isa Lang is Head of Information Services at Chapman University Law School Library, Orange, California
