This post is unlikely to win me friends on America’s West Coast and it may even see my US mediation teaching visa withdrawn, however when the issue even has its own Facebook group called Save the Mediation Joint Session and Promote Party Participation with over 50 of the world’s top mediators signed up, then the patient is more critical than I thought.
The rise and rise of the mediator’s proposal [1] and other evaluative interventions by many of our number, along with the relentless demise of the joint session, are all part of a larger lurch to the right for mediation practice.
And if we look for ground zero, inevitably all roads lead to Southern California where we are told the joint session is almost non-existent in that most mature of markets, Los Angeles.
There in the City of Angels it seems the caucus only model, with the mediator’s proposal at its heart, has taken root and is now blooming in the desert air.
Carried aloft on the hot and dusty winds of the Santa Anas, blowing westward through the canyons of LA and out over the Pacific Ocean, these changes are coming to all of us.
And there’s debate about how it all came to this – just how did the mediator’s role reduce to that of water carrier between rooms and how did counsels’ default process come to position their client – not for resolution – but for the inevitable mediator’s proposal?
There’s even a name for it – jockeying for ‘advantageous impasse’ where counsel dig in and actually hope for advantageous impasse so that the mediator’s proposal is predicated on the ‘right’ number.
In many parts of the US, the mediator’s proposal has now become the endgame rather than a rarely used intervention technique in only the most intractable of cases. Much has been written on the subject, even from those in the eye of the storm.
Earlier this month, respected Los Angeles mediatior Jan Schau writes in her piece The Dreaded Mediator’s Proposal: Intrusive or Necessary?
“… In the last five cases which I’ve mediated, I’ve been asked (or perhaps volunteered?) to prepare a mediator’s proposal in each of them… I know this is controversial.
I tell the parties that I am willing to propose terms which may help to break an impending impasse once I have sufficient input from each side as to what is possibly acceptable. Then I set out to write out all of the terms I can think of and set a “value” that I think each side may agree to. And then, like the parties, I sweat it out until they respond…”
And for many years Californian neutral and author, Victoria Pynchon, has been tracking this issue. Way back in 2009 she advised “… whether parties to litigation should engage in joint session bargaining at some point in the process is a hot topic at the moment because joint session practice is nearly a dead letter in one of the most active and sophisticated mediation markets: Los Angeles… Most attorneys do not like to begin their mediated negotiations with a joint session and neither do many mediators. The reason most often given is everyone’s desire to avoid a polarizing set of zealously adversarial presentations”.
And Kluwer’s own Jeff Krivis, a veteran of the LA mediation scene, has been warning for sometime this is happening in his backyard in posts on this blog like The Preventable Death of Mediation and The Settlement Drift.
The wider profession is, I’m pleased to report, at last realising these folks aren’t waving – they’re drowning.
In a wonderful piece in this month’s ABA Dispute Resolution Magazine by Eric Galton and Tracy Allen called Don’t Torch the Joint Session they open by saying “… Have you heard? Perhaps you have witnessed or participated in a very disturbing trend in mediation – the avoidance of a joint or general session including all counsel and parties in decision-making. This phenomenon, which is “reshaping” the customary mediation process, is increasingly evident throughout the United States. In our view, this phenomenon is market driven and is resulting in the structural dismantling of the mediation process.
“Many of us have wondered what the mutant child of the marriage of law and mediation might look like. Now we know: deconstruct the process and turn mediation into the more familiar judicial settlement conference”
And then there is my own call to arms a while back In Praise of Joint Sessions.
“I have resisted thus far saying what I really think of a mediation process where the parties never meet as my aim is to present a balanced debate. But I cannot conclude without observing that, in my view, shuttle mediation has arisen, in part, out of a laziness by mediators. Why?
It’s just easier to work separately – it’s far less effective in so many ways, but it is easier. Because, you see, the air is just not as thick in caucus and it takes less effort to breathe there”
[1] A mediator’s proposal is a set of settlement terms advanced by a mediator in an effort to settle a dispute when the parties have reached an impasse. The mediator’s proposal is made on a double-blind basis to all parties in separate communications; the parties are asked to accept or reject the terms as proposed, with no modification or counteroffer, within a specific time frame. Thanks to John DeGroot’s The Mediator’s Proposal: A Great Tool For Yesterday’s Disputes
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Thanks for keen observations Geoff. Remind me, what were our ideals 25 years ago when we started the mediation engine running? Was it client satisfaction? Saving money? Self determination? All of the above? Are we not fulfilling those goals now by using different formulas depending on the case? I’m not sure the real issue is the use or non use of the joint session, but whether we are achieving client satisfaction.
Hi Jeff, this is an excellent discussion. I am aware that one model mediation is a very narrow approach. Which one is the best? Is it possible to say that all mediations in which clients are satisfied are fine? The point is who the clients are? Clients, or lawyers? Clients usually are not those who require to have just caucuses in mediation. Their lawyers do. And if lawyers are the suppliers for new mediations for the mediator, the answer is obvious. I have got such an answer form my colleague mediator from the US.
Some researches found that mediations with only caucuses, and mediation in which caucuses are combined with joint sessions, are almost equally successful. The only difference was the level of the clients’ satisfaction with the outcome. Again, who are mediation clients?
Geoff,
Thanks for these comments.
Anecdotally, I also see the domination of this mediation model among the majority of lawyers. It is sometimes called the “SIMSNILC” model —not an elf from the Lord of the Rings, rather a dreaded acronym for the “Single Issue Monetised Shuttle No Intake Lawyer Controlled” model of mediation. It is perhaps analogous to medical doctors being competent in, and overusing surgery. Very useful on occasions, but otherwise it is professional negligence to use one habitual model or intervention to fit all clients. Ask any hospital.
When I was a young articled clerk in a law firm, I was instructed that whenever one of my clients said “ I want my day in court” or an equivalent phrase, then I should take the client immediately to meet a senior partner. I faithfully did so. The senior partner would tell me in front of the client in theatrical manner, “ John, Mr or Mrs X wants their day in court. Please take him down to watch so that he knows what he will be buying.” I then dutifully escorted the client to be a spectator in a court for a day. At the end of the day we would return to the senior partner for a report on the pre-purchase excursion. The partner would ask the client again in theatrical fashion “ Well what do you think? Do you still want your day in court?” Not one did.
In my opinion, the SIMSNILC trend amongst lawyers and “their” mediators raises yet again traditional questions for any “profession”, namely—
* How many types of (“mediation”) services exist?
* Which (mediation) providers are competent/expert in each different type of service?
* How to educate users and gatekeepers about the different types of (mediation) services actually available? ( apart from written lists and typologies)
* How to match disputes and (mediation) services more effectively?
* How to modify marketing overreach, over-confidence, habit and self-serving misdiagnosis by any ( mediation) service providers, and representative gatekeepers (lawyers in this situation) working in their comfort zones?
In my opinion, it may also be commercially foolish for a majority of lawyers and mediators to become habitually trapped into this (or any) comfortable single model of mediation. Such narrow specialisation involves increasing disservice to clients ( Would the members of your law firm buy this model of mediation for their own disputes—“I want my day in mediation”?); a decreasing slice of the vast “conflict market”; competing against an increasing number of cut price and similar mediation services; and meanwhile losing the confidence of insider employees who know about the narrow range of production-line services being sold to clients.
Nevertheless at this time, for a variety of reasons, I do not foresee many changes to comfortable mediation practices of lawyers and “their” mediators in the small lawyer controlled mediation market. However, this group ( of which I am one!), only control a tiny slice of the vast conflict resolution market.
Best wishes and thank you again,
John Wade
Mediator; Professor Emeritus.
Hi John. Thanks a lot for your fine comment! I adore your: “When I was a young articled clerk in a law firm, I was instructed that whenever one of my clients said “ I want my day in court” or an equivalent phrase, then I should take the client immediately to meet a senior partner. I faithfully did so. The senior partner would tell me in front of the client in a theatrical manner, “ John, Mr or Mrs. X wants their day in court. Please take him down to watch so that he knows what he will be buying.” I then dutifully escorted the client to be a spectator in a court for a day. At the end of the day, we would return to the senior partner for a report on the pre-purchase excursion. The partner would ask the client again in theatrical fashion “ Well what do you think? Do you still want your day in court?” Not one did.”
Thanks a lot, Geoff for the article!