Mediation Connections

I recently mediated a workers' compensation claim where the individual parties were in separate States and participated by telephone. I generally start mediation with some introductory comments about the mediation process and make sure all are introduced. Then in litigated matters I ask counsel to share their perspective on the matter.  

That's how things started - claimant's counsel spoke, I did a quick summary and then defendant's counsel spoke. Toward counsel's conclusion it was mentioned that the defendant, among other challenges, was recovering from prostrate cancer treatment. Right after this statement, Plaintiff chimed in from across the country, to offer concern for defendant's condition. Turned out that claimant was a cancer survivor and there ensued a short, yet connecting exchange directly between claimant and defendant.  Later as the mediation neared its conclusion with a settlement, counsel remarked on that early exchange. Both noted that they were not sure how it would play out, but thought it helpful for their client's to have had that direct link.

As mediator, even in litigated cases, I encourage direct participant interaction. While I look to counsel for the lead, I also ask and invite all to participate. Making connections between people, even when they've never met until mediation, can help enhance the work and decisions made. So, in your next mediation, figure out how to get everyone to talk to each other. 

Mediation Confidentiality versus Inadmissibility

Confidentiality at mediation has been a hallmark of the process since 1991 when mediation began in our North Carolina Courts.  Further, over the years both our appellate courts and the North Carolina Industrial Commission have supported the understanding that what happens at mediation is confidential as to the mediator and inadmissible in any proceeding unless there is an agreement enforcement or sanction issue.

In agreement enforcement cases the Industrial Commission and the Courts allow participants to testify about what happened at mediation; however, the mediator is only allowed to indicate that an agreement was signed in their presence at the conclusion of mediation.  No other mediator testimony is allowed.

In sanction issues, particularly if mediator sanctions are at issue, then the mediator may testify about what happened at mediation.

A recent Advisory Opinion from the North Carolina Dispute Resolution Commission 12-22 provides further clarification about the difference between "confidentiality" and "inadmissibility."  

According to the North Carolina Standards of Conduct for Mediators and most mediation program legislation and rules, the mediator is required to keep all that occurs at mediation confidential (except as noted above).  Note - this is one of the duties of the mediator - not the parties or counsel.  

Inadmissibility is different from confidentiality.  What is said and done at mediation is not admissible in a later proceeding. This does not preclude parties and their lawyers from talking about what happened at mediation.  

This is the clarification contained in NC DRC Advisory Opinion and all mediators should clarify this distinction in their opening remarks. Counsel should make it clear to their clients that what is said and done in mediation may be inadmissible, but may not be confidential.

That's My Bottom Line !

I’ve heard that statement many times in mediation and so have you.  What does it mean and how should you react? 

At a recent mediation, defense counsel in private caucus after exchanging several proposals, said that’s our bottom line and presented a final figure of $20,000.  Plaintiff’s last figure was $40,000, but I knew from talking with plaintiff that they wanted to get the case settled and would be more flexible, but that $20,000 was not going to do it.  I also thought, but did not know, that the defense would pay additional funds to get the case settled.  So, I kept working the mediation process, exploring what came next if we stopped and kept folks talking.  About 45 minutes later, the case settled for $27,500.  

Thus, my approach is to accept the “bottom line” statement as a beginning point rather than the end. I’ve come to this conclusion after hearing the phrase and then, as noted above, folks are willing to pay more or accept less to settle the case.  Thus, as many statements in a mediated negotiation, the mediator must take all with an open mind. 

My point to you as mediator is to keep exploring options even when people make this statement.  If you are the advocate, rethink your use of this statement because if you say “bottom line” and don’t really mean it, but the mediator believes you, then you are done and the mediation will stop.  Find another way to firmly state your proposal without closing the door to further discussion.  Of course, there does come a time when you are done – when you’ve made your best proposal – and that’s fine.  I usually find this point after exploring a proposal three times and being told no.  That means folks are truly at their bottom line.

I once heard a mediator describe “bottom line” as a line in the sand of a desert.  It’s there and it’s real and then a wind can come up and blow it away.

Negotiaion / Mediation Bracketing

I’ve been thinking about brackets since March Madness and I thought that with the tournament complete, then that would be that.  However, brackets keep coming up in mediation after mediation.  It’s a tool that I sometimes use and I’m finding mediation participants know about them too and suggest them as well. I mediate litigated cases including workers’ compensation and personal injury claims.  We have mandatory mediation in North Carolina that requires certain people attend; however, no negotiation or settlement offers/counter offers are required.  The idea is to get the decision makers together with a mediator and then to allow free choice about how to proceed.  Now back to brackets.

Let me explain bracketing in negotiation/mediation in context. It’s a tool that I’ll use when things seem to be getting bogged down, when we are in what I call the negotiation phase of mediation, i.e., actively making proposals and counter proposals to resolve a dispute, and the progress is slowing or participants are making very small incremental steps.  This slow down usually occurs when folks have very different public evaluations of a dispute which usually translate into the numbers that are discussed.  And when folks perceive a large distance in the numbers, they often get hesitant about making significant moves.  Here’s a recent example from a personal injury claim.  Plaintiff made an initial demand of 155,000, defense responded with 20,000, then a counter at 150,000 and 24,000, then 147,500 and 25,000 - things were not going very far nor very fast.  People were getting frustrated at the pace.

At this point I asked Plaintiff (counsel and client) if they wanted to use a bracket to reframe the negotiation.  The idea is to create new numbers to recharge the negotiation.  Here’s how it worked in this case.  Plaintiff officially countered with 146,500 and said they would move to 125,000 if Defense moved to 42,000 and then it would be back to Plaintiff.  This was rejected by Defendant; however, she proposed a revised bracket.  100,000 - 30,000. This was countered by Plaintiff - 125,000 - 30,000.  Defendant rejected and proposed 90,000 - 35,000.  Note that during these exchanges participants are continuing to evaluate their claim and are in active discussions with the mediator (me) about aspects of their claim, what their future choices might be, what are the risks and opportunities of not settling the claim versus settling.

As a result, Plaintiff accepted the 90,000 - 35,000 bracket proposed by Defendant.  Then we started moving.  Defendant offered 40,000, Plaintiff 85,000, then Defendant 45,000, then Plaintiff 80,000, then defendant 50,000, then plaintiff 75,000.  With the bracketing and ensuing discussions the participants shifted from 146,500 - 25,000, to 75,000 - 50,000.  Things slowed again as both participants wanted to continue negotiating (the spread from 75,000 - 50,000 was likely in the settlement zone), but also didn’t want to over extend themselves.  It took additional work from all and the claim eventually settled for 62,000. 

The bracketing discussion allows participants to share information about what they would do if a different offer was in front of them.  Since information is a large part of the currency of negotiations, any such discussions help move matters forward.  And when things are slowing down or getting stuck, using a bracket to reframe the negotiation can often smooth the way.

Let me know about your brackets - did you pick Connecticut?

What Would Kate Do?!

Kate, Kate, Kate – What were you thinking?!  Like all reflective mediator practitioners, I’ve been watching (studying) the new USA Network drama – Fairly Legal – to learn new mediation skills from the lead and all star mediator Kate Reed. In the first few episodes we’ve learned that mediation is about a win-win resolution, that the mediator is impartial, and that the mediator’s job is to learn about the problem and then fix it.  And that the mediator can do just about whatever they want to get the case/dispute/conflict settled.  Anything goes for ratings!

Some of Kate’s mediation skills/language rings true. She says “win-win” (I call this “all win”), the mediator is impartial and the idea of the mediator helping get matters resolved.  However, for me the operative word is “helping.” Mediators don’t have the power of a decision maker and can’t generally come up with a better resolution than that of participants.  In fact, that’s what mediation is supposed to be about – the mediator helping, supporting, encouraging, etc., participants to come up with their own ideas for resolving the dispute.

I’m all for the mediator being active in helping participants figure out how to resolve their conflict/dispute; however, I don’t consider the mediator role as the “fixer” like Kate.  I certainly do all I can to assist folks and I do want mediations I conduct to reach a mutually agreeable resolution yet, if I’ve run a quality process, then I’ve been successful.  After all, I can’t force people to settle/resolve their dispute. 

I also want Kate to "own" her mediation process.  Just about every mediator I know starts the mediation with some type of introduction, some type of mediator opening, but Kate just walks in the conference room, people start talking and even swinging punches!  It might add to the drama, but it sure takes away from the power of mediation.

So, I’ll keep watching Kate and try to add to my mediation skills.  Maybe I need some high heels for smashing watches?  Or perhaps not!  Oh well, here’s hoping we get more mediation process from Kate and the folks at USA network.

Multitasking

I recently heard an interview of Matt Richtel by Terry Gross (NPR Fresh Air) discussing our brains in the digital age. Richtel is an award-winning New York Times writer and he has written about how we deal with information in today's world of smart phones, iPad's, and so on. The concept that intrigued me as a mediator was his discussion and explanation concerning “multitasking.” According to the science, Richtel explained that in reality our brain can only process one item, one piece of information at a time. Thus, when we are “multitasking,” we are in reality switching from one activity to another at a very high rate of speed. And, Richtel notes that when we switch back and forth quickly, we do not often perform both tasks at a high level. Instead, both tasks are reduced in excellence because of the quick switching.

As a mediator I am often listening to one participant in mediation and also considering what to say or do next. Sometimes when I'm listening to one participant I also want to check/gauge the reaction of other participants and I will glance across the room with this in mind. Additionally, in the middle of mediation, I often consider where we are at a structural stage level. Are we still acquiring information or are we seeking to generate alternatives for resolution? Are we in the problem space of the past or the solution space focused on the future?

If you had asked me about these mediator activities before hearing the  Richtel interview I would've said that I was effectively “multitasking.”  Now, however, it appears that I am switching back and forth between various activities rather than holding both or all of them in my brain at once. Having this knowledge, that our brain can only process one item at a time, suggests that I should pay more attention to each item and do each item well and then move on to the next. This might mean slowing down a bit during the mediation process at times when my full attention on one participant is necessary. Then, once I've listened deeply, then I can take a moment to consider next steps rather than thinking about next steps while trying to listen well.

Tell a Story !

I was reminded at a recent mediation that telling a story is always better than reciting the facts.  And, people will listen to a story - not facts.  I was in a litigated case mediation and plaintiff's counsel told what happened and went through the medical history, all of which is needed; however, it was more a recitation and not a story to be told.  Who was the claimant?  How had the injury affected them on both the personal and claim level?  Was there anything compelling that would help tip a decision maker to your viewpoint?   These were the items longed to hear, but did not.  I did a quick summary and counsel did let their client talk and this was helpful to get some sense of them and to hear their concerns. Plaintiff spoke with strong emotion about their injuries. I thanked them for their comments and then asked for input from opposing counsel before asking any follow up questions (I like to hold my questions until everyone has had a chance to talk.).

Then opposing counsel began what I'll call an "opposing" recitation that sought to refute various facts and medical care issues.  It was an equally dry response and did not connect or reach the Plaintiff.  Many experienced counsel do an excellent job of weaving a story on either side of a case. There are many defense counsel who can both genuinely apologize for someone being hurt and present an opposing legal argument.  They connect with people and people listen to them.  They don't always agree, but they listen. 

So next time you are representing someone in mediation, tell a story!