Mediation musings after 25 years

It’s about making a deal, not proving a point

Peter J. Marx
2015 September

It is said that experience is the best teacher. On that assumption, what follows are a few thoughts on best practices, collected from 25 years’ service as a mediator. Virtually all of this is based on actual cases, with of course due care taken to preserve confidentiality.

Interests vs. positions

The case ultimately involved two murders, and two additional deaths from natural causes. (Now that I have your attention….) At issue was a rather substantial sum of money claimed by each of two extended families. The mediation occurred a long time ago, when joint sessions were common (more about that later), and the conference room was full of siblings, parents, cousins and aunts and uncles from both families. This resulted in numerous interesting and occasionally moving exchanges, but for present purposes what was significant in this three-day mediation was what occurred in caucuses, i.e., separate discussions with a few members of each family. In a number of those caucuses, the participants expressed discontent if not anger over perceived or real slights or transgressions, most of which had occurred years before, and virtually all of which were entirely unrelated to the matter actually in dispute.

Mediators listen carefully to such concerns, which though perhaps only tangentially (if at all) related to the positions of the parties on the actual issues in the case, may nonetheless reveal the true interests of the parties, i.e., what is in fact most important to them. By then seeking to address those interests, approaches to settlement can be developed. In the case under discussion, the objective was not to resolve all those perceived slights or transgressions, which in any event would have been impracticable at best. What was important was to allow such grievances to be heard and acknowledged. This in turn gave the parties harboring those grievances, often for years, some sense of satisfaction, leading to a willingness to consider the concerns (interests) of the opposing parties, from which reasonable compromise could and did emerge.

This isn’t just candles and incense thinking – it reflects an aspect of human nature which can be pivotal in reaching a solution which to the greatest extent possible satisfies the interests of each party. It allows the parties to move on, to start thinking about making a deal, rather than trying to prove a point. This, as much as anything, leads to settlement.

A similar situation may arise in, e.g., a business dispute where a lengthy relationship had existed. Perhaps there was a disagreement, years before, which was never resolved to the satisfaction of one party, but he or she let it go. However, when the present dispute arose that party said, “I’m not going to let this happen again,” and soon enough litigation commenced.

Mediators will look into the history of a relationship, be it business or personal, and here again, simply by allowing the past dispute to be heard and acknowledged, possibilities for resolution of the present dispute are more likely to be given serious consideration. Indeed, sometimes, not always, the other party will express surprise at such lingering discontent, perhaps having been unaware of it, which itself may lead to fruitful discussion, but even without this added element the mere opportunity to express the past concern may well allow movement toward resolution, and indeed clear the way to resumption of harmonious (and profitable) business relations.

It’s about making a deal, not proving a point

This was mentioned above, and it’s worth just a bit more discussion. Generally it is counsel’s function to advocate the validity of the client’s positions as persuasively as possible, both on the facts and the law. This can be useful in the early stages of mediation, providing an opportunity to assess relative strengths and weaknesses in the positions of the parties, what may or may not occur at trial, etc., all of which informs bargaining positions. But ultimately, mediation is not about establishing the validity of your client’s positions; rather, you’re there to make a deal, to settle the case. A simple and rather self-evident observation, but one which tends to be overlooked. Thus, ultimately, and again rather obviously, at the end of the day or hopefully before it is important to focus on what’s really important to the client, i.e., his, her or its true interests, and also, the interests of the other side. It becomes an assessment of what will work in trying to satisfy those interests, and often what each party can live with. In that manner, deals are made.

Yet more on confidentiality?

You may be wondering if there is anything more to be said about mediation confidentiality, a controversial subject since the California Supreme Court decision in Cassel v. Superior Court (2011) 51 Cal.4th 113. If you haven’t read Cassel, I urge you to do so. In my view this decision is mandatory reading for any attorney who utilizes mediation.

The facts in Cassel are well known, and thus will be mentioned only briefly here. In a previous case Mr. Cassel agreed to a settlement reached through mediation, but thereafter sued his counsel for malpractice, etc., essentially alleging that he had been deceived into agreeing to the settlement, his attorneys had a conflict of interest, etc. The California Supreme Court held that mediation confidentiality, as set forth in the Evidence Code, clearly precluded admissibility, in the subsequent malpractice action, of evidence of discussions between Mr. Cassel and his attorneys both immediately preceding and during the mediation in the previous action. The Court noted that Evidence Code sections 1119, subd.(a) and (b) preclude admissibility not only of what is said or written in or for the mediation session, but also, e.g., of discussions between counsel and client which occurred “pursuant to” a mediation. Thus, confidentiality is not necessarily limited to what is said in or written for the mediation session itself, and, also, is not limited to the parties, but rather, applies to all participants, including counsel.

An exception to confidentiality of course exists for purposes of enforcing a mediation settlement agreement. Thus, to be enforceable, the agreement need only contain what I call the magic words, i.e., that it is admissible or subject to disclosure, or, enforceable or binding, or words to that effect. (Evid. Code, § 1123.) But in certain circumstances, it may also be advisable to seek to render admissible private discussions between counsel and their clients occurring during the course of or pursuant to a mediation, which may include discussions prior to the mediation session itself. The Evidence Code suggests avenues by which this may be accomplished. To give an example, counsel in a private discussion with his or her client may agree to a fee reduction in order to facilitate settlement. To avoid a later dispute as to the amount of that reduction, counsel and the client in the course of their private caucus may enter into a simple, hand-written agreement specifying the precise amount of the fee reduction, that the agreement is prepared by fewer than all mediation participants and does not disclose anything said or done in the mediation, and that it is a settlement agreement and is binding and enforceable between those who have signed it and is admissible and may be disclosed in any subsequent proceeding between them. (See Evid. Code, § 1122, subd. (a)(2).) For a comprehensive analysis of this question, including sample forms for such on the spot agreements, I strongly recommend an excellent article by my colleague Caroline Vincent, entitled Enforcing Mediation Caucus Agreements After Cassel, which appeared in the September 2012 issue of Advocate.

What ever happened to joint sessions?

When I began mediating in the late ’80’s and for a time thereafter, joint sessions were routine, with caucuses occurring later as the day progressed. This was generally beneficial, as in what were called opening statements, the parties expressed their views, such that everyone was able to observe directly not only how the opposition perceived the matter, but also how they expressed those perceptions. Additionally, sometimes parties would provide an indication of what was truly important to them, i.e., their interests. Each party also got some sense of the demeanor of the others, how they might hold up at deposition or trial and how they might be perceived by the jury.

But for many years now it’s been pretty much the opposite. Joint sessions are the exception, not the rule, and if they occur at all it may be later in the day. In a sense this may be a bit unfortunate, as joint sessions can be useful, as noted above. Also, sometimes when the parties get together they start treating each other as human beings and become more willing to work together toward resolution.

This is especially true if they share snacks or meals. In the early days it was not common, as it is now at most mediations, to have food available virtually all day (a wonderful development, in my view!), but I usually brought snacks, and in my Daily Journal profile I am quoted as describing one of those early cases by saying something like “Everyone started eating pastries, and two hours later we settled the case.” True story. Breaking bread together encourages folks to see each other on a more human level, creating a greater opportunity to make real progress. Granted, in some situations joint sessions just aren’t appropriate, the most obvious example being sexual harassment cases, where generally the plaintiff doesn’t want even to set eyes on the defendant, let alone be in the same room. (In such cases be sure to call the mediator in advance and “choreograph” the arrivals of the parties.) But I continue to believe joint sessions can be valuable, and my recommendation is that this be considered in preparing for any given mediation.

Cross-cultural mediations

Los Angeles has become truly diverse, no longer the “white bread” town it was when I was growing up. Thus, it is now common for one or more parties (and/or counsel) to be of cultural backgrounds quite different from the others. People everywhere have conflict, but how they address it may vary greatly from one culture to the next. Accordingly, where parties are from different cultures, it has become important to anticipate and prepare for such differences, to avoid creating significant obstacles to resolution, however unintended.

Preparation thus must include some understanding of different patterns of social interaction, belief systems and basic values – of your own client as well as the opposition. For example, be aware that nonverbal cues such as eye contact, gestures, smiles, social distance, voice volume and physical contact may vary and convey widely different meanings from culture to culture. Inquire and inform yourself about such matters – it can make a huge difference.

Remedies

One of the beauties of mediation is that you can craft remedies which would not be available in trial. In some cases it is simply all about the money, but often there are other possibilities to which one side can agree and which may be of great significance to the other, thus materially advancing resolution. Thus, don’t just focus on one possible remedy. Instead, put all conceivable possibilities on the table, even those which seem of little if any utility. Consider them all, mix and match, selecting what’s useful, rejecting what ultimately isn’t. Be creative, especially as sometimes you may be surprised to learn what might appeal to or at least be acceptable to the opposition.

Conclusion

This article is intended to provoke your thinking in preparation for your next mediation. Keep in mind that mediation is consensual. The parties control the process. This presents a tremendous opportunity. Make it work for you. Be creative. Use your imagination!

Peter J. Marx Peter J. Marx

Peter J. Marx has served as a mediator for over 25 years in a wide variety of disputes, focusing on business, labor and employment, and entertainment disputes, as well as personal injury and family matters, but also including, e.g., real property, inverse condemnation, construction, legal malpractice and civil rights. His service as a mediator has been informed by nearly 50 years as a member of the California Bar. He is fluent in French and enjoys mediating in that language. Mr. Marx mediates through ARC. peterjmarx@earthlink.net.

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