How Many People Does It Take?

I saw an article recently where a mediator described a typical mediation in a litigated case. The mediator explained that there was usually a short joint session and then the parties and their attorneys quickly went to private caucus. The mediator would then go from room to room working with each “side." In a recent case, the mediator noted something unusual.

Apparently two contractors had a dispute about payments on a construction job and a met in mediation. The mediator described a routine mediation until at the end there remained an impasse between the parties. At that time, one of the attorneys indicated that his client wanted to meet privately with the other party without attorneys or the mediator. The mediator checked this out with the other party and counsel and they agreed. The parties knew each other from work on several projects and proceeded to meet privately for 30 minutes. At the conclusion, the parties announced they had settled the case, gave the details of the settlement and asked their attorneys to complete the necessary paperwork. The mediator commented on the power of relationships and how they can be so important in mediation

As I read this mediation description I was reminded of a mediation from several years ago. In that case, a general contractor was in a dispute with a subcontractor, a brick mason, over work completed on a public school site. The brick mason claimed significant monies were owed on various portions of the contract while the general contractor disputed the claim for additional monies owed and raised questions about work quality. The claims were largely grouped into four areas and after reviewing these in summary, the parties chose to start working on one specific aspect. The general contractor had bought along the job supervisor, team leader and their attorney to mediation while the subcontractor was present with their attorney.

After initial discussions together and then in private caucus, progress was made and we got back together in joint session to finalize what appeared to be resolution of the first issue. As we worked through some of the specifics and began putting together language on the first issue, the brick mason subcontractor looked across the table, caught the eye of the general contractor and said, “do we need all these people to get this case settled?" The room was quiet for a moment and it was clear that the general contractor was giving this idea some thought. After a moment, the general contractor looked around and then at the subcontractor and said, "no, I don't think we need all these people to work this out." With that said, we had further discussion about how to move forward and soon a plan was put together. The general contractor and subcontractor agreed to recess the mediation and to meet for breakfast the next day at a local restaurant.

A week or two later, I followed up with counsel and learned that the case had been settled over breakfast. What a great lesson that even in the heat of litigation, relationships can matter. As mediator, you don't always know if the relationship will matter or not; however, we should always keep our eyes, ears and I suppose our nose open to relationships at mediation!

Moving Forward or Moving Backwards ?

As mediators, I am continuously monitoring the rhetoric between participants to the mediation. I listen for the tone, language, substance and manner of delivery in this consideration. The point is not to discern “good” or “bad” communication; rather it is to determine how we can be of assistance.

If the communication seems to be moving things forward, I may sit back and do nothing other than pay attention. This is the mediator “ holding space” for the discussion. If the conversation seems to be moving backward, then I consider what steps, if any, I might take. Do I need to reference any agreed upon guidelines (I don't use ground rule, just guidelines). Do participants need a break or private time (caucus) to review and think about the recent exchange? Or, is the moving backward an opportunity?

Obviously, paying close attention is the key to our work as mediators and in this manner we can make crucial mediator decisions about how we do our work. Over time I’ve learned that even if the discussion appears to be moving backward, this may be just what the participants need to move forward. It is, after all, their dispute and a privilege for us as mediators to serve in our role.