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JAMS ADR Insights

Alternative Dispute Resolution Mediation

I Mediate Like I Entertain

How to prepare, adapt and serve up successful outcomes

I love to entertain. I enjoy poring over recipes and ideas for menus and coming up with themes for events. I truly enjoy spending time with my guests. And I bring the same mindset to mediations.

Before hosting an event, I do research and get prepared. I look through recipes in my old-school recipe file and in my digital notes and scroll through favorite websites. I find out if my guests have dietary restrictions (vegetarian? gluten-free?) and/or food preferences. (I, for one, hate all condiments.) I make a list of what I need and from where and buy ingredients in advance.

Setting the Table for Success

I take the same approach before a mediation. I prepare. Just like I set my table in advance of my event, taking care in selecting the tablecloth and centerpiece, I like to “set the table” for my mediations. How do I do that?

I review mediation submittals and then prepare for pre-session calls. I find out who is going to be in attendance (and who won’t be there and why) and what the possible impediments are to the “menu”. I do research about the parties and their counsel so I can better understand their backgrounds. As in a family gathering (think of holiday meals with a wide range of relatives), are there communication problems I need to be aware of? Are there certain issues that the parties will not touch (like how I feel about mayonnaise), and if so, what can I substitute so that a particular topic is acceptable? I make a list of what I need to learn from the attorneys and make sure I have that information in advance: Who are the decision-makers and will they be present? Do we need a translator? Are there insurance coverage issues? Unresolved liens? What is the status of the case? Have offers and demands been exchanged? Are the attorneys missing “ingredients” that they need—i.e., are there key pieces of discovery that will make the process futile? Can they obtain that information before the mediation?

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Flexibility and Preparation

While preparation is critical, being able to quickly pivot is equally important. If I don’t have an ingredient I need, I figure out a substitute. Similarly, in mediation, it is essential to be able to switch between approaches when an impasse is reached to keep the process moving forward.

Timing and Bringing It All Together

Timing is important. When I host a meal, I want to make sure my various dishes will be ready at the same time. Similarly, timing is important during the mediation process. I think of the various rounds of negotiations as different courses. Typically, mediations start out with low-key sessions—to get the flavor, if you will, of how the day may proceed and what the key issues may be.

I find that desserts often take the most time, so I often prepare that course first. Similarly, I try to anticipate what a settlement document is going to need to contain from the inception of the mediation and probe these issues early and often. Are the parties going to ask for confidentiality? Are there non-monetary terms that need to be included? Ideally, a draft of a settlement agreement will be available early on in the mediation and can be exchanged among counsel so that there are no surprises and the clients have time to “mentally masticate” the terms and discuss any issues with their counsel.

Serving Up Offers and Demands

It also is important to know when and how to convey offers and demands; it is important that the ideas have been “cooked”—that the parties have been engaged in and understand the process and are ready to be open to participating. No one likes an undercooked entrée, and no one likes an offer or demand that is presented too early or not properly prepared—one that has no support in the evidence.

Finding Common Ground

A meal is not just about the food, just as a mediation should not be just about the numbers. To me, the joy of hosting is that I bring people together and that real conversations and connections occur. Similarly, I think a successful mediation should allow for discussions to occur and understanding to be achieved—if not acceptance. I recently read the book How to Know a Person: The Art of Seeing Others Deeply and Being Deeply Seen by David Brooks. Brooks writes that “[a] good conversation is not a group of people making a series of statements at each other. … A good conversation is an act of joint exploration. … A good conversation starts in one place and ends up in another.” (Id. at 97.) My goal is to have good conversations, whether those are around a dining table or a conference table. Resolution can occur only when a party at least understands the opposing party’s point of view and the risks involved if the trier of fact accepts that version My goal is to facilitate good conversations during mediations.

Creativity and Custom Approaches

I don’t think I have ever served the same meal twice to friends. Sure, there are some constants—there is always cranberry sauce at Thanksgiving and latkes at Hannukah (though I have been known to throw a “Latkepalooza” contest in my day)—but I always try new recipes or variations on a theme. The same idea holds true in mediations. Yes, numbers at some point need to be exchanged, but how and when those numbers are exchanged can be done in a variety of ways. Not every mediation will make use of brackets, for example. I tailor the meal to the occasion and the guests, just like I vary my approach depending on the parties and counsel involved, the legal (and non-legal) issues involved and the progress of settlement negotiations. To use a terrible metaphor, I don’t think mediations are cookie-cutter affairs. Each one is different and needs to be approached individually.

I am not the world’s best cook—far from it, but I excel in my creativity. I display food in different and unique ways; I am always trying to think of how food can be prepared in an unanticipated manner.

Similarly, in mediations, I am creative in trying to understand what parties really need to resolve a case and emphasize that mediation can achieve goals that are simply not on the drop-down menu that a trier of fact is asked to select from. At the end of the day, all a jury can do is award money—it cannot compel a letter of reference or request that a memorial be erected or demand that settlement funds be structured in a certain way.

Getting the Details Just Right

The details of each meal matter to me, as do the details pertinent to each mediation and to each participant in that process. Just as I want my guests to feel comfortable, I want the parties and their counsel to feel at ease. Most importantly, I want everyone to feel heard, really heard. Brooks puts it this way: “When another person is talking, you want to be listening so actively that you’re practically burning calories.” (Id. at 99.) I actively listen so I can understand how the parties perceive the situation they find themselves in and help them find a path forward to resolution.

A Satisfying Finale

At the end of a meal, I want my guests to feel satisfied even if they didn’t like every dish. I want them to feel like they were tended to and appreciated. Similarly, my goal in mediations is to have every participant know that I listened to them—and I heard them—and that I did my best to reach a palatable result for them.

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