Zenith Administrator

Typically, when parties come to mediation, it is pretty much expected that there would have at least some “bad blood” between them, since they are in the middle of a conflict.

However, in this case, actual blood had been spilt because one party had actually shot the other!

Prima facie, it would look like that there would be no way these parties would agree on anything, given that such extreme physical violence had taken place.  And one would have expected that the parties would come to the mediation all girded up for a fight.

However, within a few minutes into the mediation, I realized that that preliminary information could be highly deceptive.  And that a single incident of physical violence (even as extreme as a shooting) might not be as damaging to a relationship as other actions generating conflict (like cheating, defamation, breaching an agreement, etc).

In this instance, to play it safe, from the very outset, I had decided not to have the parties in the same room at any time during the mediation.

Then I decided to straightway take the bull by the horns and brought up the shooting incident (but in a somewhat light-hearted way, since I was not sure about what reaction to expect) with each party.  To my astonishment, it did not appear that either party considered the shooting incident to be that big a deal (- and I knew it would have certainly been a major factor if the matter did not settle in mediation and went to court).

Once it was clear to me that the shooting episode would not be a stumbling block at all and the parties had come in looking for an amicable way out, I was confident that I would be able to assist them in finding the appropriate avenue to a solution.

In the end, it turned out to be one of the shortest mediations that I had done.  We reached an agreement by noon, I churned out the Mediation Settlement Agreement in about 30 minutes and the parties were out of the door with the MSA (signed by all parties, attorneys and myself) hot off the printer in their hands at around 1:00 pm, with this traumatic portion of their lives behind them, hopefully onto better things.

And the feedback they gave me reinforced that my approach had indeed been effective – not only did we reach a settlement but everyone seemed to have enjoyed the process as well – which I found to be most gratifying!

In the process of facilitating another settlement (and maintaining my 100% record!), I learnt another lesson.

Situation appeared to be pretty straight forward.  Both sides were represented by attorneys who had been in communication for some time attempting to reach a negotiated settlement.  However, the discussion seemed have got stuck at some point due to which they came for a mediation.

Both sides appeared eager to reach a settlement – that made me confident that the matter would settle (based on my mantra “If you are motivated to settle, I can definitely help you find a way”).

And one attorney seemed to be in a particular hurry to settle since he said he had a court appearance at 1:00 pm.  When I communicated that to the other attorney, she said we should then just “speed it up” by working with the proposed agreement that she had on her letterhead.  When I told her I did not think that was a good idea (since in my mind that would arouse suspicion on the other side) she did not seem very happy.  Instead I told her to email me her proposed agreement and that I would selective cut and paste content from there, as appropriate, into the Mediated Settlement Agreement that I would prepare (which is what I ended up doing).

Turned out the proposed agreement that she had sent me was not the most recent one that she had sent to opposing counsel (who presented me with a later version of that proposed agreement where some things had been changed).  So not agreeing to work directly off the proposed agreement that I was presented by the first attorney turned out to be a good decision.

From that point onwards, the mediation went pretty smoothly and I was able to draft an agreement by around 1:00 pm and the final version was signed by all parties and myself shortly thereafter.

The feeling of exhilaration on another successful settlement was somewhat dampened by the feedback from the first attorney that she was not happy with me for rejecting her “suggestions to speed up process” but was more than compensated by the second attorney who commended me for making the process “very easy and enjoyable” (see feedback).

Well, I learnt that one cannot make all the people happy all the time even when the mission is apparently successful – so I might be better off just focusing on getting the job done …

Today I settled one more dispute – in this case, my estimate that the matter could be settled in less than a full day (based on the information that I had reviewed ahead of time in the intake forms) turned out to be accurate – we started at 9:30 am and we were done around 2:30 pm – and we might have been done earlier if it had not been for some technical difficulty with my computer.

This time the equation was the opposite of the mediation that I had reported on prior to this one.  The woman had an attorney and the man was pro se (did not have an attorney).  And it was the man who did not want to be in the same room with the woman during the mediation unlike in the previous one where it was the other way around.  My conclusion – this was not a gender based reaction but more to do with the fact that the party who did not have an attorney preferred not to confront the other party.

It is my sense, having an initial joint session (and additional joint sessions, as needed) may speed up the process but if things go off track and get heated during a joint session, it might be harder to bring sanity back to the process.  So if the parties don’t want to be in the same room (or even see each other), that is fine with me!

Again, like previously, the pro se party (who happened to be the petitioner in court on this matter) was well prepared with all details regarding the case – which also simplified matters for me.  In my opinion, if everyone can agree on the facts, then we are already halfway to a solution.  And as I tell my daughters, “You are entitled to your own opinions, but you are NOT entitled to your own facts!”.

Of course, the process was not without some hiccups with some disputes arising on who would be responsible for some tax liability to who would get a particular painting – but all those hurdles could be overcome because both parties were keen to reach a settlement – and as I have said before, that is all I need to be confident that a solution can be found to any dispute (“my mantra”!).

In the end, we reached a resolution with which everyone was happy and more importantly to me, the attorney and the parties conveyed their satisfaction (see feedback) – thus, some more people who would not be going at each other in court (and ruining their relationship and expending their funds and energies) because of my efforts.

And I managed to maintain my 100% track record in facilitating settlements – I know that record will end one day (when I encounter parties who have no intention of settling) but till then I will enjoy it!

Today I served as a Mediator for a case that prima facie seemed pretty straightforward, based on the pleadings I reviewed prior to the mediation session.

However, one thing your learn quickly in mediation is that nothing is as simple as it seems at first glance.

One party had an attorney and other did not (that is, was pro se).  The initial sense was that the pro se was at a major disadvantage.  But in this case, the pro  se had all her facts organized, seemed to have a good negotiating strategy and even said “no deal” at one point and looked like she was going to walk out, relenting only after I asked her to not quit at that stage but stay on and continue with the mediation.

From my perspective, it was clear to me from the outset that both parties were keen on reaching a settlement and neither gave me the impression that he/she was there just to kill time at mediation and go on to court.  For me, that is the only signal I need to boost my confidence that a path could be found to reach an agreement, if one tried hard enough and looked at all angles.

With respect to my approach, since both parties (and especially the pro se) appeared amenable to suggestions, I played the “evaluative mediator” rather than the “facilitative mediator”, a role I prefer because it allows the mediation to move forward more efficiently and not get into dead-ends the parties might end up in, if left essentially to their own devices.

Bottom line – the mediation that commenced at 9:00 am and what I thought could be concluded before lunch time, finally ended close to 5:00 pm, when I got the signatures of all the parties on the Mediated Settlement Agreement.

And I walked out with a great feeling of exhiliration, that I had pulled the parties out of a messy and expensive legal process, an emotion which was bolstered from the positive feedback (see link) I received from the attorney and both parties.

Earlier this month, I attended a mediation as an observer, that is, to watch an experienced mediator ply her trade and possibly pick up some strategies from her that I could  apply in the future.

Being bound by confidentiality, I cannot reveal the details of the mediation but In a nutshell, this was a family matter where the divorce had happened in 2003 but there was still ongoing litigation involving a laundry list of issues due to the high conflict nature of the couple.

It became apparent to me within the first hour that the serious stumbling blocks would be the matters of custody and possession and it appeared to me quite futile to continue.   However, the mediator kept persisting by skillfully addressing all other issues and was getting agreements on each one to the point that one of the attorneys started preparing a Mediated Settlement Agreement.

However, at the end of the day, as I anticipated, the parties completely disagreed on the matters of custody and possession and the mediation ended in a “failure” and no agreement (not even partial) was signed by the parties.

So the question was whether we unnecessarily wasted the whole day by persisting with the mediation despite the seemingly insurmountable obstacles to a successful mediation OR by getting the parties to agreement (although not signed off) on a whole bunch of issues, we left them in a better place to potentially reach a reconciliation before the trial they were scheduled to attend few months down the road.

That is the kind of call (when to hold and when to fold) that each mediator has to make during every mediation and I realized that being able to make that decision more accurately than most is what differentiates the great mediators from the just competent ones.