Why are Attorneys Afraid of Conflict in Mediation?

Jeffrey Grubman, Esq.

Jeffrey Grubman, Esq.

By Jeffrey Grubman, Esq.

The mediation process has evolved significantly over the past few decades.  Mediation was initially viewed skeptically by trial attorneys who viewed themselves as warriors who preferred to try cases rather than settle them.  Those same trial lawyers believed that if settlement was appropriate, they certainly did not require the assistance of a third party to effect the settlement.  They would pick up the phone and call their opposing counsel and either work things out on their own or try the case.

As courts around the country become overburdened, mediation became a popular forum to resolve disputes.  Many courts throughout the country require cases to be mediated before the case can go to trial.  Consequently, attorneys have been forced to participate in mediation.  Because trial attorneys were not accustomed to the mediation process, the process initially looked somewhat like a court hearing or a trial.  For example, in the early days of mediation, opening statements in mediation looked and sounded very much like an opening statement at trial.  Trial lawyers in the early days of mediation, and some trial lawyers still today, had a difficult time finding the balance between advocating their client’s position while proceeding in a conciliatory manner with settlement being the goal of the mediation.

Largely due to attorneys’ discomfort with finding that balance, it became commonplace in many parts of the country for attorneys not to make opening statements in mediation. A well prepared and delivered opening statement goes a long way towards achieving a favorable settlement for one’s client.

The custom of not make opening statements in certain parts of the country and in certain substantive case types has now led to not even having a joint session during some mediations.  Except in the rare situation where there is the potential for violence, this is a mistake.  The parties and their counsel should at least be willing to sit in the same room with one another for some period of time while the mediator explains the process and lays the groundwork for a productive day.

When there is a joint session, many attorneys instruct their clients not to say anything during that session.  These attorneys apparently believe either that their clients will say things that could hurt the client’s case or the client or the adversary will say things that could upset the other person and thereby make it harder to settle the case.  The confidentiality that blankets the entire mediation process should ameliorate an attorney’s concern about his or her client saying something that court hurt the case.  The fact that a litigant may say something that will upset the other party is not enough of a reason not to allow parties to speak.  First, the fact that the parties are engaged in litigation is evidence enough that the parties are not happy with one another.  Nobody should be surprised or devastated when one of the parties says something the other party does not like.

For more on Mr. Grubman’s discussion on being afraid of conflict in Mediation, please read the full article from Law.com by clicking here.

Mediator’s Proposals: God’s Gift to Mediation, or a Betrayal?

By Martin Quinn

Martin Quinn

Martin Quinn

Once upon a time some 35 years ago, mediation was talked about in the United States as a tool to cure dissatisfactions with the civil justice system.  The great early teachers and scholars of mediation — Frank Sanders, Christopher Moore, Leonard Riskin and others — envisioned a process focused on party autonomy that would allow disputants not merely to resolve an immediate legal problem, but to reorient their personal or business relationships into a productive path.  Early mediations were usually conducted without counsel in a highly facilitative model in which the parties and the mediator remained together for all or most of the session.

This model in legal mediations has, of course, largely given way as attorneys entered, and came to dominate, the process.  Legal mediation today relies heavily on private caucusing and has largely abandoned any substantive joint session.  Mediators are likely to be highly directive, if not explicitly evaluative, in pushing the parties to an agreement.  Party autonomy has receded, while the power of attorneys and the mediator to influence the result has expanded.  One result of this evolution is the growing use of the mediator’s proposal to bring about closure.

A frequently employed tactic, the mediator’s proposal, works like this: The parties have exhausted their ability to negotiate further.  Neither side can in good conscience accept further compromises.  But they are close enough to a deal that both sides appreciate that a final effort makes sense.  Assume plaintiff is demanding $250,000, and defendant has offered $190,000.  The mediator proposes a dollar number (or more detailed terms) between the two positions, based not on a legal evaluation of the case but on the mediator’s judgment as to a number that both sides are most likely to accept.  A mediator may tell the parties that her proposal has nothing to do with Truth and Justice, but is the number her stomach tells her is most likely to draw two “Yes” responses.  Each side may say “Yes” or “No.”  If there are two “yes” responses, there is a settlement.  If there is a “Yes” and a “No” or two “No’s,” the mediator says only that there is no settlement — without revealing the responses of either side.  Therefore, each side knows that it may respond “Yes” secure in the knowledge that its compromise will never be disclosed unless there is a deal.

A busy legal mediator reports that he now uses a mediator’s proposal in about two-thirds of his cases.  Why?  First, it works.  Neurological research teaches that reactive devaluation – the tendency to reject any proposal from an opponent – diminishes greatly when a neutral proposes the compromise.  Second, attorneys with mediation experience have come to expect a mediator’s proposal and negotiate accordingly:  intentionally leaving bargaining room open knowing that the mediator will propose the one final compromise.  Thus cases that would likely have settled through party negotiation alone now arrive at impasse as each side anticipates a mediator’s proposal.  Third, a mediator’s proposal allows the party representatives to feel — and to tell their bosses — that they held firm but the mediator “made them do it.”

For more on Mr. Quinn’s discussion on Mediator’s Proposals, please read the full article from Law.com by clicking here.

The ADR Provisions of EU Privacy Laws

Kim Taylor, Esq.

Kim Taylor, Esq.

by: Kimberly Taylor, Esq.

Companies doing business globally have a variety of complex issues to deal with, not the least of which is concern about the security of personal data collected from their customers.

In 1995, the European Union issued Directive 95/46/EC, the Data Protection Directive, concerning the protection of individuals with regard to the processing and transfer of personal data.  Thereafter, the U.S. Department of Commerce (DOC), in consultation with the EU, developed the U.S.-EU Safe Harbor Framework.  This, along with the U.S.-Swiss Safe Harbor Framework, is a streamlined process for American companies to comply with the Data Protection Directive. The Framework enables U.S. organizations to transfer personal data from the EU to the U.S. provided the American company certifies with the DOC that it adheres to the Safe Harbor privacy principles. As of December 2013, more than 4,000 companies had certified compliance with the Safe Harbor program.

Despite the Safe Harbor Framework, concerns were raised recently within the EU about data privacy amidst revelations of surveillance of EU citizens’ data by the American government.  The European Commission (EC) undertook a review of the EU-U.S. Safe Harbor scheme to ensure that it adequately served the purpose of preserving EU citizens’ data protection right when that data was transmitted to the United States. Late last year, the EC issued a report concerning the operation of Safe Harbor and offered a number of recommendations to strengthen it.

The EC recommended that companies using the Safe Harbor process to self-certify compliance with the Data Privacy Directive be required to publicly disclose their privacy policies and include a link on their websites to the DOC list of currently certified members of the Safe Harbor. The company must also require its subcontractors to publish the privacy conditions of the terms of those subcontracting agreements. Those privacy policies should set out the extent to which U.S. law permits authorities to collect data under the Safe Harbor. Recognizing that arbitration and mediation are effective means of resolving disputes between consumer and companies, the EC also suggested changes to the already-existing requirement that companies must create a readily available and affordable mechanism for dealing with individual complaints, including a system of alternative dispute resolution (ADR) by an independent third party.

To continue reading about ADR Provisions of EU Privacy Laws, please read the full article from Law.com by clicking here.

In Defense of Joint Sessions

Hon. Lynn Duryee (Ret.)

Hon. Lynn Duryee (Ret.)

By Hon. Lynn Duryee (Ret.)

Sophisticated ADR users increasingly instruct their neutral to skip the joint session and get down to business. They have grown weary of listening to tiresome opening statements and wary of encountering angry outbursts. Yet for some types of conflict – contentious trust litigation, high conflict divorce, clashing neighbors and emotional partnership disputes, to name but a few – the joint session can be the perfect tool to get the job done. It may seem counter-intuitive to place embattled participants in the same room and expect a peaceful outcome, but here is why it can work:

  • The parties have experience in settling problems between them. Take the example of warring adult siblings. These parties undoubtedly have decades of experience in solving family problems large and small. They have worked out ways to settle every prickly dispute from, “Who has to sit in the middle seat?” to “When should we put Dad in the home?” In a mediation setting, their experience in settling their own problems can be an invaluable asset in finding the best solution for them.
  • The parties (secretly) wish to resolve the emotional aspect of the conflict.  Whereas a personal injury plaintiff would likely not care whether his antagonist’s carrier overpays to settle a case, a divorcing spouse might well worry that the soon-to-be-ex won’t be able to squeak by on the proposed property division. It may be very important to participants that the settlement is viewed as fair to all sides. It is common in divorces for the parties to feel shame at their failed marriage. A joint session where parties are working on the problem together can address all of these concerns.
  • The parties will have an ongoing relationship. A lot of conflict involves parties who will never see and who never want to see each other again. But in cases where parties have an ongoing relationship, a civil and orderly joint session can set the framework for future interactions. Take the example of the heated neighbor dispute. A separate-caucus mediation might resolve where the fence is placed and what trees are planted, but what happens when the fence needs painting and the trees block the view? A well-run and respectful joint session might set the stage for future communications, enabling the parties to have a template for how they may solve the inevitable problems that arise in their future.

Admittedly, the joint session of an emotional case might feel nerve-wracking and uncomfortable at the outset, but the neutral will ensure that communications are respectful, outbursts are minimized and focus on the issue is maintained. In this way, estranged relatives may offer forgiveness, spouses may shed tears and business partners may shake hands.

In the right case, the joint session takes care of business – and then some.