Advance Mediation

Gayatri Puri

According to Chris Moore,“mediation is the intervention of an acceptable, impartial and neutral third-party who has no authoritative decision-making power to assist contending parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute”.

The experience and teachings at Pepperdine University has been an enriching experience and would reflect in our field of work by enhancing our knowledge in the dynamics of alternate dispute resolution as lawyers regularly face complex conflicts and without necessary skills and equipment, an effective mediation cannot take place, without systematic training, we tend to fall back on our native judgments. In the advanced seminar conducted at Pepperdine University, we were taught basic insights to consider, reflect or on before and during mediation. The concept of psychological, cross cultural mediation was taught along with giving importance to memory and the vital steps of a mediator to break the impasse by letting the party express their pain, suffering, acknowledging the emotions, taking direct or indirect responsibility of same and even helping them to let go to come to a settlement.Even the concept of power of perception where one can challenge to change the perception, the mindset to break through the impasse.Some of the highlights of the teaching are being reproduced herein.

There’s a greater institutional acceptance of Alternative Dispute Resolution as the resources of public are shrinking, thereby resources of courts are diminishing. The parties /litigants are understanding the process and increasingly strategic in “gaming the system” There is awareness in society at large regarding the importance of mediation process and other forms of dispute resolution. This process is often used by the courts, when they perceive that there is a possibility of settlement between the parties and refer the matter for mediation.Similarly, corporationsand other organizations that are in conflict and wish to save time, money and resources and opt for alternative disputes resolution. The idea is to compel top management of each disputing parties to listen to each other’s case and then enter into negotiation and bargain in the process to narrow their dispute and to eliminate   issues arising out of litigation.

The vital five steps of mediation process have to approached for effective mediation.

  1. The process of CONVENING which brings the parties on the table and to determine how the mediation will proceed. The latin phrase finis originependet “the end depends on the beginning”. Don’t seek to accomplish overly ambitious objectives in the early stages. It’s a gradual process of establishing trust and responding to the concerns about the mediation process on individual basis. The pre-mediation discussions represents a balancing act between making contact with the parties, establishing foundation and encouraging the parties to move towards active participation.
  2. The OPENING stage includes; the mediator explaining the process to the parties,the parties defining their issues and to establish the agenda.
  3. The COMMUNICATION sessions with the mediator are jointly or separate (caucus).
  4. The stage of NEGOTIATION is when the parties start to explore with the help of mediator,possible solutions to their disputes.
  5. At the final stage of CLOSING the mediator and the parties secure either written agreement between the parties, which resolves the dispute or terminate the session without the agreement.

The most important concept, which was taught was theRISKIN GRID.

It is essential for a mediator to understand the principles techniques of the GRID to conduct an effective mediation. The approach of the mediator can be that of an evaluative one or that of a facilitator. Both concepts can be comprehended as below:

Difference between Evaluative and Facilitative Mediators.

Evaluative Mediators

  1. The mediator is “ telling the process”
  2. The mediator gives direction on the process.
  3. The mediator gives parties direction on appropriate settlement based on law.
  4. Mediator is narrowly focused on issues but may be broader on focus.
  5. The mediator keeps the parties separate during much of the process to exchange settlement position and offers as well as reality test.
  6. Communication and negotiation is controlled through the mediator and the parties/attorneys do not negotiate directly.
  7. The solution should be issue focused rather than interest focused.

Facilitative Mediators

  1. The mediator is “Asking Process”.
  2. Mediator assists parties in communicating and identifying underlying interests.
  3. Mediator assists parties in problem solving and negotiation.
  4. Mediator helps parties to reach resolution of issues and interests.
  5. The mediator to make opening statement in joint session with the parties.
  6. The stage of settling agenda and prioritizing issues is done in joint sessions.
  7. Facilitation of communication and negotiation is conducted in either joint sessions or caucus as the need may be.
  8. The stage of building resolution, agreement vetting and closing

Negotiation

The art of negotiation is to facilitate the process by encouraging flexibility and promoting innovation amongst the parties. The term Litgotiation (litigation and negotiation) has to be understood amongst the principal and the lawyers. The life term along with the time spent in litigation ;gain as well the loss to each party can only  motivate to negotiate .Moreover, separating people from the problem, positions and underlying interest is sage advice that is the outcome from classic negotiation.

There are certain aspects which have to be kept in mind to successfully negotiate:

  1. It takes two to tango: The negotiation experience varies with the needs,attitudes and “negotiation modes” of the participants.
  2. The negotiation begins long before you get to the table. 
  3. To perceive best alternative to a negotiated agreement.
  4. Pay attention to cognitive filtering. 
  5. Keeping in mind the emotional and cultural aspect.

Negotiation can be approached after the bargain stage is understood, there two types of bargains –distributive bargain and integrative bargain. The distributive bargain is paying attention to small details. It is quicker and effective. There is a power play at the early stage to strike an effective bargain to negotiate between the parties. There is a control factoras one tends to look disinterested even though interested, display of rejection to reach the dance of negotiation.The negative issue with distributive bargain is projection of being a bully towards the other party and later on having a negative impact on the relations and reputation.

The integrated bargain is when one is hard on the problem and soft on people. The search is for bringing out the interest based solution after much browsing. The vital point herein is the creativity of mind to bring out best possible solutions to the problems by brain storming, thinking out of the box.Integrated bargain is mostly prevalent in commercial and public matters. One might be dealing with the principal’s reputation and future. The mediator’s has to sharpen his skill to balance between both the distributive and integrated bargain.

The settlement negotiation is an essential part of litigations and it is observed that these days, majority of cases are being resolved through settlement. The process of settlement necessarily involves many ethical issues. It involves ethical duty of the lawyers as they relate to negotiations of settlements. There are even guidelines set to suggest best practices, rules, codes, ethical opinions, to make an effective settlement through mediation. The guidelines are designed to assist the mediator in ensuring the conduct during the mediation processes as well as while drafting the settlement. It is impossible to define specific set of mediator’s ethical guidelines for every context in every state and in every culture in which mediation process occurs. The goal is to achieve flexibility in mediation process as one of its perceived benefits. The integrity and quality of any mediation process benefits from the set ethical guidelines for the mediator in promoting good mediator behavior. It is an ongoing process to achieve its goal of cross cultural international mediation.