The trend of meeting separately with the parties, prior to the first joint session of the mediation, is growing among all mediators worldwide. For several years many family mediators, as a matter of course, met with the divorcing or separating partners separately prior to the first joint session. Non-family mediators, in increasing numbers, are concluding that pre-mediation conversations are not a “luxury” but are a necessary and integral part of the mediation process. Once a mediator has determined that the matter is mediatable, she/he then begins to prepare to be “the negotiation strategist for the table”. The most productive way to undertake this role is preparing the parties to engage in the most effective and efficient negotiation process possible.
Mediators are finding a variety of goals can be accomplished in pre-mediation meetings for all kinds of mediations:
1. Explore for possible emotional, psychological and/or physical abuse and other power imbalances or potential imbalances.
2. Determine mediatability of the dispute (right timing, appropriate level of commitment, sufficient information-gathering etc.)
3. Establish rapport with the clients.
4. Begin to determine what the most difficult issues may be for the parties as well as the issues that may prove less difficult or upon which there may be some agreement.
5. Assist the parties in being well-prepared for the negotiations. The mediator checks for the information each believes he/she may need and how they intend to go about obtaining that information. The mediator may also suggest information that the parties might need as well as suggesting sources for that information.
6. Ensure that a plan for the exchange of information is “hammered out”. This plan should include reasonable deadlines.
7. Discuss, in general, what mediation is and begin determining what process elements and/or guidelines will make sense for this particular mediation (pre-negotiating the process).
8. Determine if you are the right person to mediate this matter (e.g. explore gender, cultural, substantive etc. issues).
9. Explore who else needs to be “at the table” (whose participation could support effective negotiations; who could sabotage/undermine the agreement if not a part of the process?).
The above goals are obviously applicable to all kinds of mediations. Consider any of these goals and see how transferable any one of them might be to a workplace or organizational mediation; a commercial mediation (of all kinds); or public policy disputes. These goals can be accomplished by “face-to-face” meetings, conference calls, questionnaires or a combination thereof.
More and more mediators are realizing that they are considerably better prepared to do their jobs more effectively when they have had the opportunity to meet separately with the parties. When logistical or financial constraints make these meetings difficult or out of the question, one-on-one telephone discussions or conference calls is the next best option. In the case of multi-party mediations, the use of questionnaires can also be very helpful. Using a creative combination of face-to-face meetings, telephone conference calls and questionnaires has also proven very effective.
A CASE IN POINT
Two large oil companies, Omega, Inc. and Alpha, Inc, engaged in a sale/purchase agreement (SPA) of one of the subsidiaries of Omega Oil Company to Alpha Oil Company. It was a relatively complex agreement with several pre-conditions needing to be met and several contingency clauses prescribing various remedies for various possible events that could reasonably occur once Alpha took over the subsidiary.
As often happens, once the SPA was finalized and Omega began handing over Omega’s subsidiary to Alpha, the contingencies they contemplated could occur, did occur. The problem is that neither company could agree on whether the criteria for these contingencies had been met and, if so, if the remedies prescribed were applicable. Things went from bad to worse quickly, and lawsuits and counter suits were filed within 6 months of the handover of the subsidiary. The amounts claimed are in the several million dollar range ($10M to $15M).
After each lawyer for each company contacted me about mediating the matter, I set up a conference call with both lawyers to talk about the mediation process itself and to set up pre-mediation separate meetings with the lawyers and their clients. My intention was to build rapport with the parties; clarify “positions” and begin to explore what the real interests were; ensure that there was a genuine, good faith intention to negotiate a settlement (as opposed to using mediation as another means for discovery or as a means to “bully” the other side); explore both sides perceived Best Alternative to a Negotiated Agreement and Worst Alternative to a Negotiated Agreement in order to determine their level of commitment to the mediation process; to put in place the pre-mediation preparatory work that would need to be done to make the best use of our mediation sessions; and to talk about the mediation process itself by exploring what kind of process they were envisioning and informing them of how I generally engage with parties in a mediation (my style and approach, the use of caucusing, etc.)
After meeting with each “side” for about 3 hours, we then all (lawyers and clients) met as a group for 2 hours to have a “process conversation”. This kind of joint meeting is relatively benign because there is very little conversation about the substantive nature of the dispute. The focus was mostly on the kind of information each had (expert and otherwise); what further information needed to be gathered and how to best gather that information and the time frame and mode of exchange of that information. The other aspect related to information was how to ensure that the use of expert information was used to maximize settlement efforts. I wanted to ensure that the parties avoided the “hired gun” syndrome wherein each litigant expends a great deal of money on an expert “opinion” and neither of those costly opinions or the information upon which they are based are used effectively for settlement purposes. Each side simply sees the other expert as the other’s “hired gun”. Instead we worked toward building “a shared base of information”. This “shared base” can be built in a couple of effective ways:
1) If the experts for each side have already been hired and reported their conclusions, the parties can instruct them, on a without prejudice basis, to put their expert heads together and come up with expert information/opinions that everyone can use in pursuit of a settlement. This has and will work if the experts’ clients make it clear that they want information and conclusions that will be useful in their settlement negotiations.
2) The parties can agree on the qualifications and the substantive nature of the information that they need for their negotiations and agree on an expert source for that information. This can be done in a co-hiring process, and the expert then becomes the “expert for the table”.
In the above described mediation, we used option #1 because the parties had already spent a great deal of money on experts. The experts were able to build a shared base of information that all parties were able to use in their negotiations. The experts for both sides periodically participated in the mediation to clarify some points, and, all in all, played a very positive, pivotal role in the eventual settlement of the lawsuit.
The other “by-product” of the joint pre-mediation meeting was the realization that the senior people in each company and their lawyers had been and were continuing to make a significant number of assumptions about each one’s interpretations of various contract clauses. Everyone agreed that some simple clarification was needed. Based on that understanding, I suggested that they engage in another joint pre-mediation meeting. The sole objective of this meeting would be clarifying some of these assumptions that were getting in the way of potential settlement. This was called a “clarifying session”.
Based on the defusing effect of the separate and joint pre-mediation meetings, all of us believed that they could engage in this “clarifying session” effectively without my guidance. I did sent all parties a list of guidelines for this meeting, and it went well.
In summary, the message of this short mediation story is to consider seriously the value of pre-mediation work. I believe that, as “negotiation strategists for the parties”, we can provide a crucial service prior to their first joint session engagement. The work done in pre-mediation leads to faster and more efficient settlements by: ensuring that the parties will be much more effective negotiators during the mediation which; supporting the parties in being better prepared to engage productively with one another; diminishing anxiety which promotes more effective behaviour in joint session. The overall result is a more productive process that produces more successful and satisfying agreements.
*Michael Fogel mediates public policy, commercial and family business disputes. He teaches advanced mediation and negotiation courses for many universities and organizations worldwide and has taught settlement conference skills to superior court judges in the U.S., Canada and New Zealand. In the last couple of years he has worked with Israeli mediators through the sponsorship of The Israel Center for Negotiation and Mediation (ICNM).