AN EDUCATION IN PEACEMAKING (part 1)

M. J. Tindall, Esquire - Partner - Pittsburgh Office
Weber Gallagher Simpson Staples Fires & Newby
Co-Founder, Vertical Claims Management

A while back, I was investigating the thought of offering my services to the legal community as a mediator. My initial expectation was that, as a litigator for 23 years who negotiated too many settlements to count and had participated in a tremendous number of court mandated conciliations, dispute resolution was what I had been doing for a living. I was skeptical that additional training would offer any insight I had not already acquired over the years. I was wrong!

I began to read about mediation techniques and attended several conflict resolution training programs. What I learned was not how to settle cases, though the techniques I read about can be used for that purpose, but to develop communication. I learned that for a dispute to be resolved, the parties must have the ability to make decisions about how to deal with the issues that brought them to the mediation. Mediators must work to support the parties in having a constructive conversation in order to permanently resolve the issue that brought them to mediation.

The mediator has a critical function: to support the interaction among the parties, to amplify and highlight points of agreement and disagreement and to encourage decision making. As long as the mediator keeps the decision making power in the hands of the parties, there is an opportunity for the parties to hear each other and decide how to proceed. Mediators help the individuals in conflict become clearer about their own perspective, have a better understanding of the other's perspective, see the choices available, and hear new information. Mediators don't make the decisions or force solutions on anyone. The participants determine how or if their conflicts will be resolved. As a result, outcomes of mediation are often more satisfying to both sides than the alternative -- a court's judgment.

There are three types of mediation models. The first is the evaluative model where the mediator uses expertise to offer an opinion on a possible solution or value. Another is a transactional stage model where the mediator guides the parties through a process and often frames the issues to lead the parties toward a resolution, allowing the parties to have confidential communication with the mediator who can then seek to move the parties’ positions closer until the dispute is resolved. The third is transformative mediation. The transformative model supports the parties in deciding what they wish to discuss, how they wish to discuss it and how to make future decisions including settlement options. The parties may make their own guidelines or ground rules for the conversation. The function of the mediator is to support the parties in having a constructive conversation and to make decisions about how to deal with their situation.

The first model is the most commonly encountered by attorneys in litigation. This is the type of mediation encountered in a “court conciliation model.” This model is quite effective in ongoing litigation that is nearing trial or in which the dispute is solely the value of a case.

Unfortunately, in my experience, the parties, at any stage of litigation, rarely get the type of closure that leads to a satisfying conclusion to the dispute. It is truly rare that either party can “get it off their chest” and vent their true feelings about their particular situation. Emotions such as “no amount of money…” or “I have done nothing…” are left unsaid at the end of the day or are orchestrated before a jury in an unsatisfying manner.

The transformative approach allows these emotions to be part of the conversation, communicated and heard. It also allows the parties to decide which issues are important to discuss, this can include settlement options as well as underlying needs and emotions. Once the parties become clear about their own goals, options, objectives and resources they are more able to consider the other’s perspective and work toward how to deal with the situation in the future. This process often results in settlements that occur because the parties are much more amenable to resolving the dispute and achieving closure.

The majority of participants find the mediator-supported conflict resolution helpful in and of itself, regardless of whether it results in an agreement. Nationally, approximately 85% of mediations result in an agreement. The chances of reaching a successful outcome depend on the issues and on the willingness of everyone involved to work towards a solution. Participants are more likely to live up to a decision they made themselves than one that was made for them by others.

Next: Part 2 – Implementation in the Healthcare Setting