What went wrong with mediation?

This article by Christian-Radu Chereji and Constantin-Adi Gavrilă points to the need for Alternative Dispute Resolution (ADR) providers to become better providers of a preferred method of dispute resolution, rather than just an alternative method, because alternative qua alternative dispute resolution hasn’t been selling very well worldwide:

Presenting recently the results of the study on ‘Rebooting’ the Mediation Directive [PDF], Giuseppe de Palo talked about the “European Union mediation paradox” – the existence of a “highly acclaimed, efficient, effective process that very few people use”, in his own words – and the need of “rebooting” the implementation of mediation process in the EU in the light of the limited effects of current legislation upon the number of civil cases mediated.

The same situation can be seen on the other side of the Atlantic, in the US, where a number of prominent experts have pointed to the fact that, after almost half a century of mediation programs implemented by courts, organizations and policy-makers, mediation is still a [marginal] method of dispute resolution, in spite of its obvious advantages.

Continue reading . . .

Nelson Mandela: Greatest Negotiator

By Susan Hackley

Nelson Mandela was “the greatest negotiator of the twentieth century,” wrote Harvard Law School professor and Program on Negotiation Chair Robert H. Mnookin in his seminal book, Bargaining with the Devil, When to Negotiate, When to Fight. In his chapter on Mandela, Mnookin cites Mandela’s patience, tenacity, pragmatism, and strategic thinking.

“He rejected the simple-minded notion that one must either negotiate with the Devil or forcibly resist. He did both. He was willing to make concessions, but not about what was most important to him. With respect to his key political principles, he was unmovable.”

Mnookin admired Mandela’s ability to persuade his adversaries.

“He ultimately achieved through negotiation an outcome that could never have been accomplished solely through violence or resistance. “

(From the Program on Negotiation Daily Blog.)

Mandela – A Titan Remembered

By Art Hinshaw

“With the death of Nelson Mandela, without doubt the most significant political leader in my lifetime, lots has been written about his impact not only on South Africa but also on the world. And plenty is still to be written. Mandela’s impact comes in many ways large and small, but more importantly it still resonates today. One of my most rewarding experiences in my life has been meeting members of the Truth and Reconciliation Commission. And of course, without Mandela the TRC would not have existed. Mandela is/was a true titan.

Earlier today FOI Charlie Craver (George Washington) sent out an email on the ADR listserv describing his work as a mediator in South Africa while the terms of both the Interim Constitution and the fall 1994 elections were being negotiated. I asked him if he would take the time to discuss his experience further and here’s what he’s sent along.

——————

South Africa was a most unusual country. A small group of wealthy white persons completely dehumanized millions of individuals solely because of their race. When I met with white leaders, it was as if they had no idea how blacks were living. I had a discussion with two Conservative Members of Parliament who emphasized the fact their families had gone back 350 years in South Africa. When I politely suggested that black South Africans had gone back somewhat further, I could tell from the looks on their faces that they had never even considered this fact. Our subsequent discussions became much more productive after this exchange.

The worst day of my professional life was when I spent a day in Soweto. The conditions in many areas of that Township were unconscionable. Many homes had no sewage, no electricity, and minimal water. A huge percentage of residents were unemployed and without monetary support. When I had lunch, I could hardly eat. Although the food was lovely, I could not eat in an area surrounded by so many persons who were treated in such a subhuman manner.

South Africa was able to finally achieve true democracy because of an extraordinary man named Mandela. He spent twenty-seven years of his life in cruel prison cells fighting for the freedom of all South Africans. Although the government tried on several occasions to talk him into accepting something less than true democracy in exchange for his freedom, he made it clear that he would never accept such terms. He and Gandhi were two of the most exceptional leaders of the past century. I only wish that they could have lived on forever to the benefit of all citizens of the entire world.”

(From the ADR Prof Blog.)

All things considered, in mediation and settlement

What do you and I mean when we say “all things considered?”

The weather, we say, is good, “all things considered;” a new car, we say, isn’t bad, “all things considered;” a dinner, a movie, a vacation, a job, a new house, a day of the week, a month of the year, a year, a decade, an enemy, a friend, a family member, a city, a town, an old pair of shoes, all can be described with the words: “all things considered.”

But what do we really mean?

Do we mean “all things considered” when we say “all things considered?” No. We mean the opposite. When we say: nice day, week, husband, wife, daughter, son, pair of shoes, “all things considered,” we mean in spite of the weather, their criminal conviction, their tendency to lie, to tell the truth, to sell drugs, to buy shoes, or to hurt our feet. We mean to say all things not considered, and we mean to say we have considered those other things, too.

“All things considered” is a simple acknowledgment of the fact that life is not simple, that true perfection in life is nonexistent, that things might be better or worse for others, maybe most others, that things might be better for us, maybe a lot better, maybe a lot worse, but, given all of these irrefutable facts of which we acknowledge the absolute truth, we are accepting, no, pleased, no, thrilled, no, overjoyed with the current state of our life, the weather, this day, this pair of shoes, or whatever – all things considered – and we are looking forward to what tomorrow may bring.

Unless tomorrow brings a presidential election, an armed conflict overseas (whether or not we are a combatant), a lawsuit (in which we are a named party), a mediation conference (in which we may be required to acknowledge, as we already do in every other aspect of our lives, that certain facts take precedence over certain other facts), or any other circumstance in which we choose to pretend that all facts are created equal and, frankly, must all be considered.

“All things considered,” then, is a comfortable lie, a euphemism, that enables us to live our daily lives. We often hear or say words to the effect that: “if you think too long or too hard, consider all of the options, evaluate all of the consequences, then you will never get married, divorced, have children, go to college, drop out of college, get a new job, buy a new car, get a haircut or anything else.” But, we do get our hair cut, have children, change jobs, and basically live our daily lives because we understand that we cannot consider all things and accomplish anything.

Until we go to mediation. Then we make believe, or pretend to believe, or actually believe, that everything matters, and if not everything, then only those things that matter to the other party, or parties, do not matter to us, and vice versa. During mediation we forget the lie of “all things considered” that so well lubricated our lives before mediation and, will again after mediation ends. During mediation we require not only that all facts be considered, but also that all facts be demonstrated if not beyond any doubt, then beyond any reasonable doubt, and if any such fact can be so demonstrated to be true then, and only then, can such a fact be relegated to the pile of facts not relevant to the resolution of the matter in dispute.

Unless you are the mediator; if you are the mediator, then you are charged with achieving a settlement of the matter in dispute in the minds of the disputing parties on terms acceptable to the parties, all things considered. And the mediator means all things considered in the usual sense, not the literal sense, because the mediator knows from experience the truth of the statement that nothing can be settled if all things are considered.

All things considered, then, to the mediator means discovering from the parties through questioning, through listening, through divine guidance, or through any appropriate means necessary what things in fact and in truth matter to each of the parties. Once the parties’ truth is discovered, if it is discovered, then the mediator knows what things may be useful to any settlement and can attempt to help the parties find common ground on those things.

It can be and has been argued that a problem with mediation is that the parties’ truth is not the actual truth, that there is a problem with “deception” in mediation, that the problem is the parties are trying to fool the mediator, and the mediator is trying to fool the parties and the lawyers are trying to fool everybody, and there is, well, something just not right about all of that tomfoolery; whatever happened to “the whole truth and nothing but the truth?”

Whatever happened is that “the whole truth and nothing but the truth” doesn’t fit mediation. It fits litigation (somewhat), but it requires a Code of Evidence and a Code of Civil Procedure and the Rules of Court to make it fit, and it is very expensive and subject to appeal and takes a very, very, very long time. What happed is the realization that “all things considered” does not always mean “all things considered.” It sometimes means that some facts take precedence over others, and that some facts do not matter at all, today, at this time, in this context, to this settlement.

Settlement is defined as an adjustment of doubts and differences. If the mediator is unable to successfully discover from the parties those things, out of all things, to be considered relevant today, to this settlement, then the settlement track will be circular, and endless, and there will be no adjustment of doubts and differences, and the mediation will fail.

The parties will then be left with “the whole truth and nothing but the truth,” as an alternative, as an option. Maybe, all things considered, it is a better option. Maybe, all things considered, it is the only option. If a search for the whole truth and nothing but the truth is your quest, then perhaps you should seek it through litigation in the first place, because proof is not the goal of mediation. The parties in mediation already know the truth of the matter. They don’t require the proof of the matter.  Mediation is a quest for settlement, for an adjustment of the doubts and differences existing between parties, today, in this case, in a manner acceptable to all of the parties, nothing more, and nothing less, all things considered.

(Reposted from 2009.)

Not Bargaining With Syria

From Jack Goldsmith of LAWFARE:

United States Senators Joe Manchin (D-W.Va.) and Heidi Heitkamp (D-N.D.) are working on an alternative Syria resolution that provides:

If the Government of Syria does not sign the [Chemical Weapons] Convention within 45 [days] after the date of the enactment of this resolution, all elements of national power will be considered by the United States government.

In other words, our President has told Syria that the Unities States is going to bomb them because they used chemical weapons to kill civilians. And now our Senate is proposing to tell Syria that the United States will bomb them unless they sign a promise not to use chemical weapons.

Whatever these threats by our elected representatives are, they are not bargaining, and they fall far below the quality of service that we are entitled to expect from our leaders.

Continue reading about the Manchin/Heitcamp Syria Proposal and the Vienna Convention on Treaties.

All things considered, in mediation and settlement

What do you and I mean when we say “all things considered?”

The weather, we say, is good, “all things considered;” a new car, we say, isn’t bad, “all things considered;” a dinner, a movie, a vacation, a job, a new house, a day of the week, a month of the year, a year, a decade, an enemy, a friend, a family member, a city, a town, an old pair of shoes, all can be described with the words: “all things considered.”

But what do we really mean?

Do we mean “all things considered” when we say “all things considered?” No. We mean the opposite. When we say: nice day, week, husband, wife, daughter, son, pair of shoes, “all things considered,” we mean in spite of the weather, their criminal conviction, their tendency to lie, to tell the truth, to sell drugs, to buy shoes, or to hurt our feet. We mean to say all things not considered, and we mean to say we have considered those other things, too.

“All things considered” is a simple acknowledgment of the fact that life is not simple, that true perfection in life is nonexistent, that things might be better or worse for others, maybe most others, that things might be better for us, maybe a lot better, maybe a lot worse, but, given all of these irrefutable facts of which we acknowledge the absolute truth, we are accepting, no, pleased, no, thrilled, no, overjoyed with the current state of our life, the weather, this day, this pair of shoes, or whatever – all things considered – and we are looking forward to what tomorrow may bring.

Unless tomorrow brings a presidential election, an armed conflict overseas (whether or not we are a combatant), a lawsuit (in which we are a named party), a mediation conference (in which we may be required to acknowledge, as we already do in every other aspect of our lives, that certain facts take precedence over certain other facts), or any other circumstance in which we choose to pretend that all facts are created equal and, frankly, must all be considered.

Neutrality in mediation: Which side are you on?

They say in Harlan County
There are no neutrals there.
You’ll either be a union man
Or a thug for J.H. Blair.

Which side are you on, boys, which side are you on?

Which Side Are You On? was written by Florence Reece in 1931.  Hat Tip to Scott H. Greenfield over at Simple Justice.

There are no neutrals in mediation. Mediators, although sometimes referred to as a “neutrals”, are, indeed, advocates. We are just not your advocate.

“Which side are you on, boys?”

To the extent that your interests and those of your mediator correspond, the mediator is on your side, but no further.  Your mediator’s goal and function and interest is in resolving your dispute with any opposing party on terms that you both, or you all, can accept; on that date, at that time, in the mediator’s forum, but on your terms.  Mediators are not interested in preparing your case for trial.  We are interested in preparing your case for settlement.  Toward that end, we are advocates for the facts of the matter, and for a just, durable settlement based upon those facts, and for nothing else.

We are advocates for acting reasonably and truthfully and for achieving peace; and we acknowledge that lasting peace is not always achieved through settlement.

We are not advocates for “ties” or for achieving “neutral ground.”  Mediation is not neutral ground.  It is a battleground existing under a white flag of truce, not surrender.  It is your last chance to choose to settle your case on your own terms, or not.  Mediators are there to help you choose wisely, and for no other reason.

Negotiating an Olympic victory

In 1984, the . . . Soviets were recruiting countries to retaliate for the United States’ decision to stay away from the 1980 Moscow Games, a boycott that 61 other countries joined. The Soviets announced on May 8, 1984, that their team would not come to Los Angeles because of fears for their athletes’ safety, claiming they had agreements from 100 countries to do the same.

Ueberroth said he saw the list. At the top was China.

His response was to assemble a team of envoys who could appeal to officials in undecided countries and persuade them to come. [Charles] Lee, a federal prosecutor in Los Angeles who is not Chinese but speaks fluent Mandarin, took a small group to China. Ueberroth asked a woman on his staff, Agnes Mura, to lead a group to Romania; she had been born there. Ueberroth went to Cuba.

“People think of the Olympics as a corporate structure,” said Bob Ctvrtlik, who played for the United States volleyball team at the ’84 Games and is now a member of the International Olympic Committee. “It really is not. It relies on relationships. It relies on trust. It relies on people who can cut through cultural differences and find common ground. That was the brilliance of that program.”

Ueberroth was unable to sway Fidel Castro — he keeps a framed copy of a headline from an article in The Los Angeles Times that read, “Ueberroth Strikes Out in Cuba.” But Lee’s visit was a triumph, and Mura delivered the perhaps more stunning news later in May that tiny Romania would defy the Soviet boycott.

Only 14 countries boycotted the 1984 Games.

Current U.S. Olympic Committee Chairman Ueberroth believes that China’s agreement to attend the 1984 Olympic Games in Los Angeles saved not only the 1984 Games, but all the ones to follow.

China’s attendance was obtained by intermediaries, through meetings, and conversation.

Peter Ueberroth achieved an Olympic victory through negotiation.

Mediation remains confidential in California

On July 21, 2008, the California Supreme Court confirmed for the third time that, in matters within the jurisdiction of California state courts, mediated in accordance with California law, confidential means confidential.

Simmons v. Ghaderi (2008) (PDF) 44 Cal.4th 570, concerned mediation of a medical malpractice suit. During mediation, the defendant’s medical malpractice insurance provider arrived at settlement terms with plaintiffs that were placed in a written settlement agreement for the parties to sign. The settlement terms were accepted by the plaintiffs both orally and in writing.  The defendant, however, revoked her consent to settle and left mediation without signing the agreement.

Plaintiff moved under Code of Civil Procedure section 664.6 to enforce what they contended was an oral settlement reached in mediation. The defendant argued that no enforceable settlement was reached because she had not signed the written settlement agreement and had withdrawn her consent to settlement. But she did not object to consideration of the evidence of what had occurred in mediation. The trial court denied plaintiffs’ motion to enforce settlement, finding that the requirements of CCP section 664.6 had not been met, and suggested that, alternatively, an enforceable oral contract may have been reached during mediation.

At trial of what was limited to the defendant’s alleged breach of a mediated oral settlement agreement, the defendant did object that California’s mediation confidentiality statutes precluded plaintiffs from proving the existence of an oral settlement agreement. But plaintiffs’ evidence of what had occurred at mediation was admitted over the defendant’s objection and the trial court concluded that plaintiffs and defendant’s agent had, indeed, entered into a valid, enforceable oral contract before the defendant withdrew her consent. The Court of Appeal affirmed the trial court’s judgment, finding that the defendant was estopped from asserting mediation confidentiality by her own failure to object and her use in pretrial motions of the evidence of what had occurred during mediation.

In reversing this decision, the California Supreme Court unanimously found that the Court of Appeal had improperly relied on the doctrine of estoppel to create a judicial exception to the statutory requirements of confidentiality in mediation proceedings. Agreeing with the Court of Appeal’s dissenting opinion that this case is more accurately described as an implied waiver by conduct case, than an estoppel case, and finding that implied waiver does not apply to mediation confidentiality, the Supreme Court held, unambiguously, that:

“Here, the mediation confidentially statutes made inadmissible all evidence of an oral contract between plaintiffs and defendant during mediation.”

Simmons v. Ghaderi (PDF) 44 Cal.4th at 588, emphasis added.

In California, confidential means confidential.

 

Copyright © 2008 by Kevin K. Forrester. All rights reserved.