Mediation Theory: How It Works and Why

By J. Anderson Little

When you ask how mediation works, the first thing that comes to my mind is mediation that is ordered by a court. Just a few years ago people thought that the phrase, court ordered mediation was a contradiction in terms. Mediation is a voluntary process; so how do you make people go through mediation? But part of what makes mediation work well for lawyers is due to the fact that, at least in Superior Court, it is mandated.

Some time ago, a major part of my practice was family law: divorce, custody, support, and equitable distribution. What I found in trying to settle those cases was that it is very difficult to arrange settlement conferences. Lawyers tend to do business over the phone. Seldom do we meet together to negotiate. Rarely do we and our clients meet with the other side. Consequently, family cases, particularly ED cases, go on and on and on. Eventually most cases settle, but only when they are very old. That was true in Superior Court as well before we started the settlement conference program in 1991.

What the court's order does is require that all the people with decision making responsibility in the case come together for the purpose of settlement discussions. We found in the Superior Court program that people take these conferences seriously. In the beginning, it was because the court ordered them to be there and their clients were paying them to do so. After they attended and participated in a conference, lawyers began to understand that settlement conferences solve several problems for them.

Settlement Conferences Solve Problems for Lawyers.

One of the chief impediments to settlement on a voluntary basis is that lawyers and their clients don't believe that talking will settle their case. Often their experience with non-mediated, face-to-face negotiations is frustrating or even destructive; and they have no conception of how negotiations could be conducted more productively.

Another impediment to settlement is that people tend to think they're wasting their time if settlement doesn't occur in a relatively short time. Settlement takes time, time for perceptions to change and understanding to be achieved. Many of us are not willing to carve out large chunks of time in our busy schedules to concentrate on settlement efforts, especially when we're pessimistic about the results.

Then, there is the obstacle we frequently hear lawyers talk about whenever the subject of settlement comes up. Lawyers resist initiating settlement discussions because they fear that to do so will be taken as a sign of weakness by the other side. Even when we know that it's in everyone's best interest to negotiate, we are disinclined to invite the other side to the bargaining table. People are suspicious of our motives when we initiate discussions. They don't take us at face value when we initiate negotiations; they conclude that we are calling because we have a "weak" case.

Mandatory conferences overcome all of these obstacles.

The settlement conference is automatic; no one has to initiate it. It does not depend on the good will of the parties. No one has to convince the other of its efficacy. It occurs as a part of the normal progress of a case through the court system and, as a result, has the potential of achieving settlement much earlier in the life of a case than currently is the practice. As we found in the Superior Court program, early settlement is the primary benefit of mediated settlement conferences.

So, if mandatory mediation comes to North Carolina in equitable distribution cases, I suggest to you that it would be a fortunate thing, as it has been in Superior Court. It will create settlement opportunities that we have not been able to develop for ourselves; it will result in earlier settlement; and, in my opinion, it will result in overall savings to your clients. It will help people make decisions about their case and get on with their lives much sooner than in the recent past.

So the first thing I would have to say about mediation and how it works has to do with mediation within the mandatory context, in the context of a court order. It works because it gets lawyers and their clients to the table.

The second thing I would say about how mediation works is has to do with how people negotiate once they've begun to talk with each other. There are things people do when they're negotiating, or fail to do, which diminish their chances for success. In short, many of us don't know how to negotiate very effectively once we get together in the same room.

After taking my initial mediation training, I began to evaluate the way I negotiated cases, and discovered something that I'm really not happy to admit. I didn't know how to negotiate---or, more accurately, my range of negotiating strategies was very limited. This may be true of some of you as well.

I had three basic negotiating strategies---some of you may recognize these. I would state my position as forcefully and as elegantly as I could. If that didn't work, I would repeat what I had said. And failing for the second time, I would repeat it louder.

The only negotiating skill I knew was advocacy, the attempt of one person to persuade another of the logic or benefit of a particular point of view. I'm not suggesting that advocacy isn't appropriate for mediation; quite the contrary. My point is that many of us don't know how to go beyond advocacy when our attempts to persuade have failed. Our range of negotiating strategies is very limited.

I have concluded in recent days that the word mediation is misleading and that the popularity of this word has obscured the primary purpose of the procedure. What's important to remember about mediation is that it is a word that describes facilitated negotiations. The emphasis in mediation should not be on the mediator, but on the people who come together, voluntary or otherwise, to negotiate.

When we were creating the Superior Court program, we chose a name for the procedure which put the emphasis in the appropriate place. The name of the procedure became Mediated Settlement Conferences instead of Superior Court Mediation. The emphasis in mediation ought to be on negotiation---that is, on the role of the parties and their attorneys, not on the role of the mediator.

My initial training in mediation took place when I was still trying cases or negotiating their settlement. That training taught me more about negotiating skills than any previous professional training or experience. And now, lawyers across this state are learning negotiation skills through the training available for Superior Court mediators.

We have observed in teaching mediation that half of our lawyer/students attend not to become mediators but to become better negotiators. They return to their practices much as I did years ago, with a new confidence in their abilities and a renewed sense of the value of that part of their practice which is concerned with negotiating settlements.

What I'd like to do at this point is to highlight some of those things that mediators learn that can help lawyers develop a wider range of negotiating strategies, and, in the process, talk about why mediation works.

Facilitating Positional Bargaining.

When we teach mediation, we typically talk about the role of the mediator in three different ways. The first role is concerned with facilitating traditional position-based bargaining. Position-based bargaining is a phrase coined by Roger Fisher and William Ury in their landmark book, "Getting To Yes". In their parlance, a position is a stance a person takes or puts forward as their way of solving a problem. Traditional position-based bargaining is characterized by the promotion of different or opposing positions, with settlement occurring after concessions are made by both sides and some middle position is reached.

We typically see this form of bargaining when money is the only item in issue. We go to an automobile dealer, make offers and counter-offers, and dicker with a salesman until we've made a deal or walked away in frustration. A mediator is confronted frequently with cases in which bargaining like this takes place. This is what I call negotiating by the numbers.

How does a mediator facilitate that type of bargaining? How can the parties themselves conduct that type of bargaining more productively, with or without a mediator?

The principal lesson mediators learn at this point is another concept from of Fisher and Ury, which is identified by their phrase, Best Alternative To A Negotiated Agreement, or B.A.T.N.A. Fisher and Ury remind us that, in order to evaluate any proposal we develop or the other side puts on the table, we need to understand the alternatives available to us in the event we do not reach settlement. We negotiate best when we can compare what's on the table with what we can achieve without bargaining.

We often negotiate without analyzing our BATNA, without understanding our alternatives. We sometimes satisfy ourselves with the statement, "I'll see you in court", thinking by making that statement we have stated our alternative clearly.

A rigorous analysis of our best alternative would have us consider a wide range of possible outcomes in court, depending on what evidence is admitted and what rulings are made. Perhaps we do this for ourselves, so that we can be in a position to advise our clients. But how many of us conduct that analysis with our clients, so that they have a thorough understanding of the range of possibilities in court if they do not conclude a negotiated agreement with their spouse? This is sometimes referred to as litigation risk analysis; more frequently, in mediator parlance, it is referred to as analyzing one's best alternative, or one's BATNA.

I don't intend to insult anyone's intelligence by suggesting that lawyers don't analyze these things. In fact, from the very moment a client walks through the door with an ED problem, for instance, we are constantly concerned with how the case will be decided at trial. But it has been my experience, that lawyers in all types of cases and in all courts attempt to negotiate their client's cases without having completed reasonable discovery, analyzed the points in law or in fact where the case could lose or gain value, or defined the costs of litigation, both monetary and non-monetary.

One of the things I learned in mediator training was to complete enough discovery to understand my client's BATNA and to go over that analysis with my client before I undertook extensive settlement negotiations.

I also learned the importance of developing negotiating positions prior to the start of negotiations. This is a part of the negotiating process that lawyers frequently neglect, as we discovered during our early experiences in the Superior Court mediated settlement conference program.

If you have not developed at least a tentative target or walk-away number prior to negotiations, you and will not be able to evaluate offers the other side puts on the table. And if you have not developed an opening position that is consistent with the value of your case, you're likely to drive the other side toward an equally unrealistic position and decrease the chances that a compromise will be reached.

So, mediation training helped me learn how to negotiate by the numbers better, helped me prepare, analyze, talk with my clients, and helped me develop positions with my clients before the conference; so that we had a game plan for the conduct of negotiations.

How does mediation work? Mediation facilitates positional bargaining. Mediators assist the parties and their attorneys in analyzing their case, in understanding their BATNA, in developing positions that are in line with the value of the case, and in communicating those positions to the other party. In other words, mediation helps the parties negotiate by the numbers in a more productive way.

Facilitating Joint Problem Solving.

The second thing that mediation training taught me was that there are other ways to negotiate than by positional bargaining. I learned that one can turn an argument about positions into a discussion with one's opponent that looks and sounds more like joint problem solving than it does bargaining. A second view of the role of the mediator, then, is concerned with facilitating joint problem solving, turning traditional negotiations into a search for mutually satisfying solutions.

The key to creating joint problem solving, where the aim is to achieve mutual satisfaction, is to explore and understand our clients' goals and objectives, their needs and interests.

People in conflict jump to positions and solutions without giving thought to the problem which gave rise to their disagreement. They respond instinctively to the other side and to their own pain rather than thinking about their own needs and objectives and acting upon them.

A mediator can assist in this situation by helping the parties look behind their positions and understand the problem which gave rise to the dispute. A mediator can help them understand what they are trying to achieve and help them generate solutions that will be satisfying to both.

This form of negotiation is in reality a search for mutual satisfaction through joint problem solving. The key inquiry we make in problem-solving is: what do I need? what are my interests, goals and objectives? and what are the needs, interests, goals and objectives of my opponent? If I don't know those, both my own interests and theirs, it's hard to devise a solution that accomplishes something for everyone.

Mediation training taught me the importance of understanding my clients' needs and interests as I worked to prepare their cases and negotiate their settlements. We lawyers tend to forget to ask our clients what they need, what they want, and what they're trying to accomplish.

We also forget to inquire as the needs and interests of our opponents. In order to turn positional bargaining into joint problem solving, we need to know about their objectives and interests as well as our own.

The chief technique a mediator uses to get at needs and interests, goals and objectives, is the use of the open-ended question. That's the type of question an attorney uses on direct examination , or in a deposition, when s/he really wants to know what the witness thinks or knows. It is through the use of the open ended question that a mediator, attorney, or client can learn about and understand his/her own goals and the objectives of his/her opponent.

When I spoke earlier of learning to expand my range of negotiating skills, this is the subject I had in mind. As I learned the value of looking for needs and interests in order to turn negotiations into problem solving, I found myself asking more questions than I had before. I used declaratory statements to persuade, and I used interrogatory statements to discover my opponent's needs and interests.

It's often said that the best labor negotiators are the ones who speak the least, listen the most, and ask the most questions. They're not trying to advocate their position. They're trying to find out what the other side needs, so they can craft a solution which solves the other side's problem as it solves their own.

So mediation works because it turns traditional position-based bargaining into problem-solving. It engages everyone in a collaborative search for a solution that works for both parties.

Facilitating Understanding.

There's a third thing that we teach mediators to do, and it's a third reason why mediation works. Mediators are trained and encouraged to promote understanding between people, and to provide opportunities for them to hear and acknowledge each other even as they disagree about solutions and positions.

In mediation, the parties have a chance to hear and understand each other, perhaps for the first time. For the mediator, simple human understanding is a goal that sits as high on his/her agenda as does the settlement of the case. Through his/her training and experience, a mediator knows that changes in positions and solutions often take place for reasons that have nothing to do with BATNA, needs and interests analysis, traditional positional bargaining, or problem solving.

Sometimes people do things for each other for reasons that have nothing to do with rational calculation about the value of their case or their mutual satisfaction. Sometimes people are willing to do things for each other simply because they are acutely aware of their connection with each other; they do those things in honor of that connection.

A mediator knows that change sometimes grows out of simple human understanding. A mediator works to create an environment in which understanding can take place between the parties. And a mediator provides understanding when the parties themselves are unwilling or unable to do so.

There is nowhere that this can happen as frequently and as powerfully as in the family setting, between people who have had an intimate relationship and who still share that intimacy as parents of their children, or who share the disappointment of intimacy loss, or who still have to deal with each other in distributing the remnants of that intimacy.

I witnessed such an occurrence rrecently in a conference I was conducting for a couple who had been divorced several years, and who were trying to make decisions about where their children would go to school. At one point in the second conference, the mother gave a long, but heartfelt, statement about how she perceived the needs of the children, and what she desired for them in their education and development. Her statement was spoken in such a way that their father had an opportunity to hear her as he had never heard her before.

A couple of days after that conference, which we ended shortly after she had made those remarks, I received a letter from him in which he said: "For as long as I have known her, I have never fully understood how strongly she felt about how our educational choices affect the growth and development of our children, and I am willing to do things now that I was not willing to do before."

In that case, and in countless others that I can recite, change has occurred because people have simply understood each other and have been affected by that understanding in ways that nobody can fully describe or predict. It's in moments like these that major breakthroughs occur in negotiations. It's in moments like these that people do things for each other and for their families that they would not have considered in times of high conflict. They are moments of great import and power and can never be fully understood or explained.

So, mediation works because it facilitates understanding. It promotes recognition of the parties for each other, and it provides an experience of understanding in which change can occur.

Tools of Communication.

The major tools of the mediator are really quite simple. They are the tools of inquiry and exploration and the tools of clarification and understanding. The mediator inquires about the problem that caused the conflict, the needs and objectives of the parties, the value of the case, and the alternatives available to the parties. The mediator will ask a lot of questions, and encourage the parties to ask questions as well. The first objective of the mediator is to open things up, discover, question and explore.

The second important thing that a mediator does is to help clarify and focus the parties' efforts. The mediator's aim in asking questions is not to embarrass anyone or put them on the spot, or to make them divulge sensitive information. The aim of the mediator is to help the parties clarify and focus them on the problem at hand and to redirect their efforts into productive negotiations.

Often people come to you as clients not knowing fully what they want or how they're going to get it. What you do with them in your work is help them clarify their own needs and objectives. Mediators do the same thing. They summarize and clarify, so that everyone understands the nature of the problem and focuses their energy on solving it, rather than blaming each other for it.

That's another thing a mediator does--a mediator can help interrupt negative interactions, take the sting out of poisonous communication, point people away from name-calling and blaming and move them toward productive problem solving.

The mediator's chief technique to help people clarify and focus on the work at hand is the summary statement. It's hard to describe the power of a statement that summarizes what the speaker has said. A summary statement demonstrates to the speaker that he's been heard. In the process, it gives the speaker a chance to clarify what he's said. And it gives the other party a chance to hear him clearly in a clean, neutral way.

If I could make one rule for human behavior throughout the world, it would be that no one has the right to speak until they have summarized what the other person has said. We don't listen to what people say. We're too busy thinking of the next thing we're going to say. Sometimes we don't even listen to what we say ourselves. A mediator makes sure that everyone is heard and demonstrates understanding through the use of summary statements.

The Settlement Conference.

It might be useful to talk about what a mediated settlement conference looks like. When attorneys are involved in the conference, the mediator will work with them in setting a time and place for the conference. Sometimes people insist on holding the conference in a "neutral" place, because they find lawyers' offices threatening. In the Superior Court program, however, we've found that people prefer to meet in attorneys' offices where they access to files, computers, staff, and communication devices,

In ED cases, when attorneys are present, we often try to resolve everything in one session. Typically the mediator will begin the conference with all participants in the same room, so that everyone can talk together about the issues, areas of agreement , and additional information they need to make decisions. The mediator will give each side an opportunity to present its perspectives on the case.

At some point, the mediator will meet privately with each side to explore the strengths and weaknesses of the case, settlement options, and the goals and objectives of the parties. These private conferences are confidential, at least as to that information identified to the mediator as confidential. The success of a settlement conference depends upon the trust the parties have in the mediator to maintain confidentiality.

Through some combination of general and private sessions, the mediator tries to build momentum towards settlement. He looks for compromise positions in traditional bargaining and workable solutions, based upon the interests and needs of the parties.

Sometimes additional discovery is needed before decisions can be made, so conferences have to be recessed and rescheduled in order to accommodate this need of the parties. ED cases are complex from a factual and legal standpoint. They often involve valuations of pension plans and business entities about which the parties need more information. Family cases are complex from an emotional standpoint as well. The mediator may have to deal with and clear away several emotional layers before work on numbers and solutions can occur., For these reasons, it's impossible to predict the length of a settlement conference.

When attorneys are not present at the conference, most family mediators want the parties to know the legal issues they'll likely face and what a court might do with the case if it is carried to trial. They encourage their clients to consult attorneys and are worried when they don't. Mediators should not play lawyer during the conference. They should avoid giving legal advice, and they should direct all questions of a legal nature to the parties' attorneys. Typically, mediators invite the parties to consult with their attorneys before the conference and during or between conferences if the need arise. Sometimes attorneys attend the first session or become involved at a later session at the suggestion of the mediator or one of the parties.

Typically family settlement conferences involve multiple sessions lasting 2-2/12 hours each. They're hard work; so multiple sessions allow the parties and the mediator to take a break from each other and give them time to gather additional information or documents. A mediator may make work assignments and will expect the parties to return to the next session prepared to move forward in their negotiations. Settlement conferences conducted without attorneys typically involve 2-6 sessions, which means 4-12 hours of work on the part of the mediator.

Most mediators charge for their services at an hourly rate. In the "Superior Court setting, fees are set by court rule if the court appoints the mediator and set by agreement of the parties if the parties choose their own mediator. In a voluntary settlement conference, fees are set by agreement of the mediator and the parties. This cost is split between the parties in some division that is agreeable to them. Some couples agree to an equal division; others agree to a division based upon the relative earning power of the parties.

Choosing A Mediator.

It's important to point out here that in the Superior Court program and in voluntary mediations, the parties retain the right to chose their own mediator. The choice of the mediator can be extremely crucial to the success of the conference. It's important that people have mediators they can trust, mediators they have worked with and know to be competent, or who by reputation are known to be able to conduct a conference that is productive, respectful, and efficient.

These are some of the considerations that should go into your choice of a mediator. It's especially important that you choose a mediator for family cases who has some familiarity with family mediation principles as they are taught and practiced around the country.

Family cases present unique problems and opportunities, and require techniques that are very different from those used by Superior Court mediators. That's due to the fact that the context in which the dispute arises involves intimate relationships---intensely personal relationships which may be ongoing because of the presence of children or other personal factors. We advise Superior Court mediators to take additional training in family mediation before tackling family cases.

It's also important to emphasize that most mediators, whether they are attorneys or not, do not draft agreements for people who come to them for mediation services. In most cases the mediator will send you a written summary of what their clients have discussed and agree. If legal services are to be performed to render agreements enforceable, they will be performed by you, the attorney, not by the mediator. Regrettably, not all mediators operate by this policy. If a mediator draws an agreement for the parties' to sign, you are right to question it and to wonder whether that mediator his action pursuant to established standards for the practice of mediation as well for the practice of law.

This is true even if the mediator is a trained attorney with many years of experience in family law. Most standards of conduct for mediators, emphasize the need to separate the work of the mediation from that of providing professional advice--whether that professional is a counselor, psychologist, attorney, accountant, or someone operating in any other professional arena. I think that you really ought to insist on mediators who do not give legal advice and who do not tell your clients how to settle their case.

When is Mediation Appropriate?

Attorneys often ask questions about the timing of mediation. When is mediation appropriate? My answer is that mediation is appropriate any time negotiations are appropriate. In my mind, the question really isn't about mediation, it's about negotiation. Most of the time negotiation goes best when a person thoroughly understands his case from a factual and legal perspective and understands the relative costs, benefits, and risks of all his alternatives. A person is ready for mediation when he's ready for negotiation.

In the Superior Court setting we say a mediated settlement conference should occur after discovery and well in advance of trial. The point is to save the time, effort, energy, and aggravation that goes into needless preparation for trial.

Should mediation occur before negotiations are conducted between the parties directly? That's a harder question. Some people think that mediation should be contemplated when negotiations have failed. Others believe that mediation is a good forum for negotiations at any time because of the inherent safeguards that mediation provides and the atmosphere that the mediator creates throughout the negotiations. Whether you use a mediator for your negotiations, and when you use a mediator, certainly depends on many factors, including the costs of the mediation process and the ability of the parties to negotiate without assistance.

Mediation And Advocacy.

As a closing comment, let me note that I have observed an item on your program at the end of tomorrow's session entitled, "ADR and Advocacy: Are They Compatible?" I hope that it is evident at this point in my remarks that mediation, a process of facilitated negotiation, has a place in almost every case that exists at some stage prior to or during its life in court. I see mediation as 'additional" or complementary dispute resolution rather than "alternative" dispute resolution. It is simply an extension of the negotiation process all lawyers seek to learn and employ throughout their practices.

I hope it's evident, as well, that I see the role of attorneys continuing throughout the mediation process. The attorney counsels the client. The attorney advises the client of rights and remedies and helps the client analyze litigation risk and cost. The attorney helps the client utilize the power of the court to address power imbalances between the parties. The attorney guides the discovery process, so that the client fully understands the case. And the attorney helps the client develop bargaining positions and strategies. None of these aspects of advocacy are diminished in any way by the mediation process or by the use of a mediator.

Is there a role for the attorney in the mediation process when the attorney is not present? Decidedly so. The attorney's role is to counsel, to evaluate, to gather information, and to support the client in his/her negotiating efforts. One cautionary comment should be made here. The attorney, having not been at the conference, may not fully understand from the client what what occurred during the settlement conference. Therefore, if something seems amiss to you, I suggest that you give the mediator a call. The attorney's role at this point is to not jump to conclusions and assume that something adverse has happened to your client. Find out from the mediator what went on and what you can do to be helpful.

As to settlement conferences attended by the attorney, there is plenty of room for advocacy. In Superior Court conferences, attorneys bring video tapes, graphs, charts, drawings, and diagrams to illustrate their points. They make persuasive presentations on their clients' behalf to the decision makers on the other side of the table.

However, as I have suggested earlier, the role of advocacy has to be revisited in light of what we know about how mediation works. I learned that advocacy includes helping clients identify their own needs and objectives and those of their opponents, so that problem solving can take place between the parties. And I learned about the power of simple human understanding and the simple techniques of communication that make it happen. Advocacy for me now includes inquiring and exploring with the use of questions and listening with understanding to what I hear.

In mediation, there's room for all kinds of advocacy, including advocacy as traditionally understood. Attorneys who have participated in Superior Court mediated settlement conferences know this to be true and like mediation as a result. They have found that it enhances rather than diminishes their practice and role as an attorney. They and their clients like it because it eliminates barriers to, and provides an efficient and productive forum for, their negotiations.