As a federal judge, my exposure to mediation was the traditional method of having the mediator shuttle back and forth between the parties (and their lawyers), in private sessions –often lasting more than a day. Shortly after I retired, I had lunch with Ken Feinberg, one of the most famous and successful alternative dispute resolution professionals in the United States, and perhaps the world! I told Ken that I affiliated with FedArb and planned to focus on arbitration, special master, and corporate monitor assignments. He asked why not mediation? I responded that I was not sure I had the patience for mediation. His reply surprised me: “The most important trait of a good mediator is creativity, and you are creative.” Ken suggested that I enroll in the Harvard Law School Program on Negotiation and sign up for the “Mediating Disputes” Workshop with Professor Robert Mnookin to see if that experience would change my mind. I was genuinely surprised how much I enjoyed the structure and pace of “The Understanding Model” of mediation Professor Mnookin and his colleagues taught.
This Model requires both parties to be in the same room at all times; no private discussions with the mediator are allowed. This setting has six objectives: for both parties: 1.) to develop an complete understanding of the conflict; 2.) to take responsibility for or own the conflict; 3.) to proceed at each step in the mediation by agreement; 4.) to go beneath the disagreement to learn what each party cares about the most; 5.) to express their feelings, even if doing so creates tension; and 6.) to act with autonomy and honor commitments.
The most important technique I learned to achieve these objectives was “looping” at each stage of the mediation. “Looping” requires the mediator to ask one party to speak. Then, the mediator summarizes what was said. Next, the party either agrees with the mediator’s understanding or corrects and restates that understanding until the party and mediator have a common understanding of the substance of what was said. That process then is repeated with the other party. The principal benefit of “looping” is having each party receive the benefit of being heard, not just by the mediator, but by the other party.
Did I mention that each party may have a lawyer present, but they are not allowed to speak. Of course, they can talk privately to their client during breaks, but otherwise the lawyers are in the “cone of silence.”
The “Understanding Model” requires the mediator to guide the parties through five stages, with the objective of completing the mediation in one day. Phase I is “Contracting,” where the mediator explains the process, clarifies the responsibilities of the parties, and negotiates the ground rules. This is when the mediator explains the importance of confidentiality, emphasizes the process will be conducted by consent, but any settlement proposals are inadmissible in a subsequent judicial proceeding, and establishes a fee structure. The work product of this effort is reduced to a mediation agreement signed by the mediator and parties.
Phase II is “Defining the Problem and Dealing With Conflict,” where the purpose is to understand the history of the conflict and the parties’ perspective of why their previous relationship fell apart. Here it is important for the mediator to tease out the parties’ underlying emotions about their dispute.
Phase III is: “Understanding the Law and Parties’ Interests.” First, it is critical for the parties to understand the black letter law that will be applied if the dispute is resolved in adjudication. In other words, answer the question: “What is the judge likely to do?” If the mediator is a former judge the parties will tend to have more confidence in the answer. This phase is where the risks and opportunities surrounding litigation should be written down by each party, so they can see the downside of not reaching a resolution. Second, the mediator needs to be sure that each party understands what is important to them and why they need to achieve a resolution that creates value for both parties. It is also critical for the mediator to help the parties appreciate that there are multiple ways of resolving their dispute. At his juncture, brainstorming is an effective exercise in identifying the elements of a potential resolution, with the caveat that there are no bad ideas. From the collective list of potential elements of a resolution, each party then must rank each element with an “A” to “C” grade, in order of importance.
Phase IV is: “Generating Options, Exploring Interests and Packages.” Here the mediator elicits “lessons learned” by both parties from the morning exercises and asks both parties to write down what they think the bottom line of the other party is. The mediator needs to remind the parties of the consequences if a resolution is not achieved. Next, each party should begin to craft a potential “resolution package,” thinking creatively, but stressing each side must move in the direction of the other.
Phase V is: “Concluding and Looking to the Future.” In this final phase, the mediator helps the parties identify and reach an agreement that is committed to writing and signed, together with a schedule for implementation.
Over the week there were numerous opportunities for the students to “role play” in mock mediations and learn to appreciate the challenges facing the parties and the mediator. I began to see the mediator like a conductor of an orchestra — helping to cue the musicians when to play their instruments to create a melody.
The dynamics of this method were intellectually and emotionally challenging but opened my eyes to the promise of more meaningful and efficient mediation. If you want to learn more, I suggest two resources: Gary J. Friedman, “Inside Out: How Conflict Professionals Can Use Self-Reflection to Help Their Clients” (American Bar Association 2014), and Robert H. Mnookin, “Why Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict, 8 Ohio State Journal on Dispute Resolution, 235 (1993).
I appreciate Ken’s advice and am so glad I listened to him.