Mediator, Know Thyself

My last column generated some responses that I think may be of interest to readers. It seems that my point concerning a lawyer's response when asked by the mediator what the client's confidential "bottom line" is in connection with the effort to strategize for a satisfactory resolution, hit a nerve.

On the one hand, it was asserted that asking such a question is "highly unskillful" because "the mediator is taking on way too much power" in attempting to get information in connection with financial negotiations. The reader suggested that asking open-ended questions would be the more appropriate facilitative approach focusing on interests rather than evaluating opposing bottom lines putting too much early emphasis on money, especially so as not to place the lawyer in the "ethical dilemma" that I had presented. Asking for "bottom line information" was interpreted as "an evaluative or directive, not a facilitative, style of mediation."

Interestingly, another reader brought to my attention that "many of the points" made by my column were corroborated by a recent study, "indicating that the problems...identified are both serious and widespread."

A mediator's approach to the process can run the gamut from facilitative to evaluative to directive. In other words, moving from the side of the field where the neutral assists the parties in understanding and resolving the conflict they own using solutions they have created to the other side where the neutral in effect resolves the dispute. As an example, in the mediator statement form required to be submitted by the appointed neutral upon conclusion of a Court of Appeal, 2nd Appellate District mediation, the question is asked as to the "primary style in this case." The choices are faclitative, evaluative, and directive in that order. Robert A. Baruch Bush has characterized the latter as a replacement for arbitration as an overly formal, costly, and "judicialized" process.

Leonard Riskin has classified the orientation of mediators into those who narrowly or broadly define problems and who either evaluate the situation or refrain while facilitating the negotiation by the parties. He says that narrow-focused mediators assume that the parties are looking to them to solve the problem created by their respective positions, whereas broad-focused mediators emphasize underlying interests and assist the parties in uncovering, understanding, and satisfying them. However, he has since replaced the "facilitative-evaluative" with an "elicitive-directive" system.

Carrie Menkel-Meadow, Lela Porter Love, and Andrea Kupfer Schneider in their work "Mediation: Practice, Policy, and Ethics" indicate that Riskin's "elicitive-directive" system "maps not only the predispositions, intentions, and influences of the mediator, but also those of the parties and their attorneys." They also note that "mediators operate across a continuum between facilitative and evaluative, as the particular case requires." As mediators we fall into that process analysis whether we insist that we are facilitative, evaluative (as opposed to directing the parties), or "selectively facilitative" (as proposed by David Greatbatch and Robert Dingwall in their article dealing with divorce mediation).

My reference to bottom lines was not intended to refer strictly to financial disputes but rather to all mediations. We all have bottom lines, whether real or imagined, firm or flexible, initial or final. My use of this approach is a preliminary element in an attempt to map "the predispositions, intentions, and influences of the parties and their attorneys."

In addition, the purpose of my reference to the bottom line was intended to illustrate the ethical issue under discussion. There was no intention to insist that ethically lawyers had to disclose their client's bottom line, only that their response be truthful even if it merely was that they did not have permission from their client to provide that information. One of my mediations dramatically illustrates the value of having a truthful answer to the bottom line question when asked, and the unfortunate result when lawyer and client are untruthful with the mediator. This was a case where the parties refused to meet in joint session. One side had no problem in providing me with their bottom line but made it clear that I should keep that confidential until they felt comfortable letting the other side know that information. In the meantime, they authorized me to convey an opening offer. On the other hand, the opposing party and lawyer were clear that their bottom line did not include any money and authorized me to convey that to the other side.

For several hours, I went back-and-forth and could not budge the side not willing to pay anything although the other side made adjustments downward. Finally, the latter had enough and asked me to let the other side know that they were going to leave. So I conveyed the message. They did indeed leave as promised. As the remaining party and lawyer were packing up to go, the lawyer indicated that they might have been willing to pay a small amount but nothing like what the departing party had requested. When I responded that this was information that he should have given to me when I asked for the bottom line, he merely shrugged and replied that he never expected the other side to leave. I suggested that had I been able to convey some sort of reasonable financial offer to the party who had left perhaps the negotiation could have been kept afloat and eventually both sides might have agreed to something that would have worked for each.

What is truly "evaluative" and what is really "facilitative" many times is not capable of discernment because of the effort to get the parties to consider interests and underlying needs rather than positions. However, this does not change the fact that the obligation of the mediator is to control the process while the parties are in charge of the outcome. In exercising their right of self-determination, the parties are entitled to know in advance the particular style of their mediator.While the skillful mediator asks questions that leave it to the parties to make their own outcome decisions rather than take direction from or be influenced by the neutral, the bottom line question truthfully answered will not change that process and can only increase the chances for success.