Hi all,
I'm going to further reflect on the mediation role-play that we did in class yesterday.
I found it particularly interesting how some of the parents' lawyers were able to spin the simulation, causing there to be no settlement. I think this illustrates the impact that third parties have on conflicts. At the beginning of the year, I observed a mediation that involved a woman with a business that failed and her previous landlords. When the parties showed up to mediation, the woman brought her mother. About halfway through the session, it became clear that the mother was not interested in settling the case, but in raging against her daughter's ex-landlords. Because of the mother's emotional involvement in the case, she stubbornly refused any offers made by the other parties. The case did not settle and went to court, where the judgement was for the landlord. I often reflect on this case because I am quite sure that if the mother had not attended the mediation, the case would have settled that day.
The simulation also brought to mind the very first case in Stories Mediators Tell, in which Ginny (an elderly woman) ran a red light and hit another car, killing the driver and leaving his four daughters without a father. At the beginning of the mediation, Ginny's lawyer tried to tell the daughters that Ginny had suffered immensely from the accident. Ginny was appalled by the lawyer trying to make her sound like she was the victim when four girls sat across the table with no father because of her. Ginny stopped her lawyer, and instead told the girls how sorry she was in an authentic way that focused on them instead of her. In the end, the resolution was so remarkably strong that the parties even agreed to spend Christmas together. Perhaps if Ginny had not stopped the lawyer the case would not have settled the way that it did. During conflict, it can be difficult to realize when someone who you thought was advocating for your interests is actually hurting your chances of resolving the issue, which is why I think that what Ginny did was particularly remarkable. In the simulation yesterday, one of the groups had a parent's lawyer who was pushing the agenda of a public apology letter. What if the parent had decided that this letter did not necessarily further his goals? Without the lawyer, would that parent have settled?
Did any of the mediators notice the extra agenda of the lawyers? If you did, how did they address it?
Gauging by what I heard in class on Wednesday, I think our group had a little different experience than others because eventually Ms. Williams clearly expressed she did not share all of her attorney’s radical views. Ms. Williams’ attorney, who will remain nameless because of my memory similar to that of a gnat, certainly started out being a pain in the $%^(*%#. He was terrific at it (props to Stephen!). The mediations were basically stalled and we could not move forward with any meaningful discussion without Ms. Williams’ attorney interfering. He was definitely pushing a fiercer and more big-picture agenda than his client. I was a co-mediator and, of course, was not expecting this part of the exercise. I was at a loss as to what to do, so I did what some of the mediators in the Stories Mediators Tell book did, which was to ask for a private discussion with the attorney outside the room. The attorney gave me quite a bit of push-back and resistance during this private caucus, but eventually we made our own private agreement: he would take a backseat to the discussion and only participate when his client had a legal question, or if she was verbally attacked etc., and I agreed to advise Ms. Williams she did not have to answer any question she preferred not to answer (that’s something I probably should have said at the beginning). From that point, we were able to move forward in a way that allowed Ms. Williams to express her feelings openly (and actually finish a sentence!). She was able to tell us about the bullying, which we also didn’t expect, and firmly explained her aspirations of the outcome. Those aspirations were impossible to legally obtain without a change in court precedent, so we had a big job of bringing her down to reality.
ReplyDeleteAfter our separate meetings which each party, it was clear that Ms. Williams’ and her attorney’s approach to this conflict was “contending” and the school principal’s was “problem solving.” That information helped my co-mediator and I know what to expect as far as interaction was concerned. When we met with Mr. Smith and his attorney privately, we cautioned them about the bullying issue and to expect a likely emotional response about that problem; the school was unaware that was happening. During the combined mediation, we had a range of emotions and interactions, but the school principal had a great strategy. He began with sincere apologies, expressed positive comments about the Williams boys in general (super great move), and said the school was deeply invested in having the Williams boys remain in the school. I don’t know whether the complimentary comments about the boys were in the instructions, but it was brilliant (props to Ellis!). Ms. Williams’ attorney did not entirely stick to his agreement, but Ms. Williams was very clear that she did not share some of his extreme values. Ultimately we came to an agreement suitable to both parties and Ms. Williams’ agreed to drop the appeal.
I thought it was a great process. I appreciate the opportunity and challenge of managing an obstinate attorney, a contending approach from him and his client, and some pretty heated name-calling. In the end it all went well so, congrats to my cohorts, Natalie, Lia, Ellis, Lili and Stephen, on a great experience.
Question for Prof. Reynolds: Should I have asked Ms. Williams for permission before giving Mr. Smith advance notice, during our private session with him, about the bullying issue?
Chazya, you are right that third parties often have an effect on mediation that is not always positive. Some lawyers might prefer the case to go to trial for a variety of selfish reasons such as gaining publicity or hiking up their client’s bill via multiple hours in litigation. Or maybe they just have no faith in the mediation process. Additionally, friends and family members can also have a negative affect on mediation. Perhaps they feel that the person they support deserves more than what they are receiving. Perhaps they feel that the other party should be punished more severely for something they have done. For whatever reasons, third parties often have their own agenda pushed by good or bad intentions. Each situation is different and all parties involved must be aware of the group dynamic and what it will look like going into mediation. Sometimes, as we have seen in our readings, it is best for the parties directly involved to discuss their issues in private, with no third party involvement.
ReplyDeleteOn the other hand, sometimes third party involvement is for the best. Over the summer, I sat in on a divorce mediation where neither party had an attorney. While both parties seemed to be getting along fine with each other, there seemed to be an imbalance in the process. For example, the husband was much more involved in the financial and business aspects of their marriage. The wife trusted that the mediation process would be fair and thus, in the effort to resolve the matter quickly and efficiently, forewent the option to have an attorney present. At the beginning and middle of the mediation, the mediator reminded the wife that she was certainly entitled to an attorney, or someone who could at least look over the numbers and ensure that the agreement was in her best interests. She refused and the session was over relatively quickly. While I see the appeal in not having third parties involved in some cases, I think they are necessary in others to ensure that both parties’ interests are equally protected.