The Settlement Drift, Part III

What can be done to fix the system?

Some might argue that the system doesn’t need fixing. After all, most providers and successful mediators are enjoying sizable financial benefits, and the courts continue to inundate private industry with referrals. Indeed, when the mediation process is successful it is a joy for all involved and a reminder of why the process gained such favor in the civil justice system. Yet, like any “system,” when it becomes too standardized and repetitive, marginalization occurs.  To counter this dilemma, a few ideas are worth considering:

1)   Reduce the number of cases referred by courts to mediation. Judges have limited tools in their boxes for managing increasing caseloads. Encouraging every case to go to mediation was good 25 years ago when lawyers needed to get used to and educated about the process. Now that we have moved into the institutionalization phase of mediation, courts should become more deliberative about which cases they encourage to mediate as well as the timing of the recommendation. Many cases need a proper exchange of information before negotiation. In fact, many lawyers are great negotiators and should try their hand at direct dialogue with their adversary before simply scheduling mediation.

2)   Encourage the exchange of pocket briefs between the parties before the mediation so that time spent in the session is productive and less adversarial. The pocket briefs between the parties should be primarily focused on highlighting the information that best supports the case narrative.

3)   Consider the appropriate use of joint sessions during the mediation, but not necessarily right out of the gate. What has happened in the “settlement drift” is that the parties have relied exclusively on the mediator to be responsible for all information and numbers exchange. By delegating all responsibilities to the mediator, the parties have missed out on a huge opportunity to influence the other side with direct dialogue. Lawyers should use direct dialogue to their advantage, particularly when they are articulate and trained as great communicators. Mediators don’t have an exclusive license on communication skills. A lawyer should be courageous and ask for direct dialogue from time to time if it will move the ball forward.

4)   Respect the need for timing in negotiation. No one ever free falls or gets to their magic settlement number quickly, despite their best efforts. It is human nature to get accustomed to reduced expectations over time, which is why reducing a complex negotiation into a short period is a recipe for failure. Allow the process to play out and respect the fact that the mediator is managing expectations in more than one conference room.

Final Thoughts

The settlement drift described above does not have to be the new normal. With the institutionalization of mediation into the fabric of the civil justice system, the process of mediation will continue to change, and corrections are inevitably going to occur. The trend toward better screening and intake of mediation cases is already taking place on the front lines, and mediators have begun a concerted effort to bring creativity back to the forefront. Moreover, law schools have produced a huge crop of advocates who are highly educated in the proper use of mediation and will not stand for “same old same old.” Its time to control the drift in the process and press the reset button so we can return to our founding principles about mediation as a preferred method of dispute resolution.

Thank you, Mr. Krivis, for sharing your article!

Read about the current approach to mediation (Part I).

Read about what has happened to cause this type of cultural lethargy in mediation (Part II).