By Dan Brookhart
Published in Resolution, a quarterly publication of the ADR Committee of the Pennsylvania Bar Association – September 2013
There is typically a sense of uneasiness at the outset of a mediation. Having been engaged in a process which is adversarial by design, the parties are now together in a room expected to work jointly in seeking resolution of their dispute. It is the role of the mediator to help the parties navigate the path from perhaps years of contentious litigation to a conciliatory process aimed at settlement. This delicate transformation begins at the outset of the mediation with the mediator opening.
Each mediation begins with the mediator providing some opening remarks to the parties and counsel. What follows is a look at the importance of a mediator opening in setting the stage for settlement and resolution. Much of what is set forth below may appear self evident and simple. But, experience dictates that simple often needs a reminder and is not always easy!
Attitude is Everything
Setting the stage for resolution begins with understanding and appreciating the parties’ path prior to mediation. More often than not the parties arrive at mediation somewhat battle scarred from lengthy and emotionally taxing litigation.
The mediator opening provides the first opportunity to move the parties from animosity toward conciliation, which is critical to achieving settlement. It is at this moment that the mediator begins to plant the seeds of resolution. The overarching goal of a mediator opening is to create a positive environment of optimism, hope and empowerment. From the outset the mediator should model a spirit of cooperation, help reduce tension and demonstrate empathy. The parties must eventually trust this person they have invited into their conflict, so it is imperative that the mediator begin building credibility and a rapport during the opening. This can only be done by taking the time to know the details of the case and demonstrating a command of the mediation process. Trust and credibility know no shortcuts.
Thus, the underlying attitude and how a mediator comports him or herself, is of equal importance to what is actually said during an opening. Just as a seasoned trial attorney engages in behavioral advocacy, it is important to be intentional about the environment being created. Resolution comes much easier in an atmosphere of optimism, cooperation and trust.
Elements of a Mediator Opening
While stylistic differences certainly exist among mediators, there are some common elements to a mediator opening which help enhance the potential for settlement. As most attorneys have participated in numerous mediations and are quite familiar with the process, the remarks of the mediator are largely directed toward the parties. Moreover, it is helpful that everyone be on the same page with respect to process, roles and objectives.
A brief explanation of mediation helps to assist the parties in understanding the desired objectives. In many respects mediation is an assisted conversation about making informed decisions on the parties’ case. Viewed in that context, a conversation about good decision making, helps to frame the process as collaborative and not combative.
A description of the facets of mediation helps the parties distinguish it from the adversarial process which has to date defined their relationship. For instance, a mediator might explain that mediation is informal as compared to litigation. No court reporters, no cross examination; just a conversation, albeit one with an intentional purpose of making good decisions which hopefully lead to settlement.
The mediator should stress the confidential nature of mediation so as to encourage open and forthright communication with the mediator and the free exchange of information and ideas for resolution. In the opening the mediator should remind the parties that, unlike trial, they own the decision making authority at mediation. However, that message comes with an important caveat. If settlement is unable to be achieved, the power of decision making will be ceded to others. Authority over decision making is often an important driver in settlement.
To further lay the foundation for settlement, the mediator may inform the parties that mediation represents a change in mindset from litigation. While advocacy doesn’t take a holiday in mediation, it is helpful to encourage the parties to temporarily move from an adversarial process to one seeking resolution. The parties need to understand that mediation provides an opportunity to take off the litigation boxing gloves for a day and to jointly explore the possibility of settlement.
Not a Potted Plant
The role of the mediator should also be covered during the opening. Executed well the opening should allow the parties to see the mediator as a true neutral third party who is invested in helping them reach resolution. Counsel and parties alike generally appreciate a mediator who intentionally facilitates the process rather than engaging in shuttle diplomacy.
While acknowledging a fluid process, the mediator should demonstrate a well thought out approach tailored to the needs of that particular mediation. In short, while not assuming a dictatorial stance, the mediator should own and be responsible for the process. In the opening the parties should be informed that one of the roles of the mediator is to ask questions about their case, to help assess strengths and weaknesses and to get them to view the case from another perspective.
While a mediator opening is not a guarantee of settlement, it can certainly increase the potential for resolution if conducted with intentionality. During the opening, parties will be sizing up the mediator. Is this someone I can trust? Does this person have a solid grasp of the case and command of the process? Is this someone who inspires confidence and knows the path to resolution? If, at the conclusion of the opening, the answers to these questions are a resounding “yes,” then the parties will be well on their way to a successful mediation.