IN JUNE OF THIS YEAR, I attended a weeklong mediation workshop at the Harvard Law School Program of Instruction for lawyers. The course was taught by Robert Mnookin, a Harvard Law School professor and the chair of the law school's Program on Negotiation, and by Gary Friedman, a pioneer in the mediation field and current professor in the Harvard Law School Program on Negotiation. The course provided a great opportunity to enhance my skills as a mediator. But perhaps more importantly, it changed fundamentally the way I look at conflict and how I approach my role as mediator.

Professors Mnookin and Friedman define mediation as "a voluntary process in which the parties make decisions together based on their understanding of each other's views and interests, and the reality they face." This definition itself is not all that unique. But it has led Mnookin and Friedman to recommend that mediators shift away from the common model now in use, caucusing, where the parties and their lawyers are placed in separate rooms during the mediation. Significantly, these mediation experts now frown upon that approach.

Mnookin and Friedman believe that placing the parties in separate rooms detracts from their opportunity to make decisions "together." They believe it lessens the opportunity for the parties to truly "understand" both sides of the dispute. They believe that more often than not, the mediator uses the private caucus as an opportunity to manipulate the parties and to convince them to settle the case. This, they believe, is totally inconsistent with their definition of mediation.

The lynchpin of the Mnookin/Friedman mediation model is "understanding." When the level of understanding in the room reaches a sufficient level, the parties will find a way to resolve their dispute. A large part of the mediator's job is to work with the parties to insure that they reach the highest possible level of understanding. It is not an easy task. During the workshop, Friedman often noted that while the mediator is functioning as a neutral, in fact he or she "is an advocate for understanding." Friedman was fond of saying that this demanding role requires the mediator to be "radically subjective" for both sides in the room.

This model differs substantially from the mediation model most often followed in New Hampshire. In fact, with the notable exception of family law cases, what passes for mediation in New Hampshire is a lot more like neutral evaluation than mediation. In most private mediations in New Hampshire, the mediators tend to be experienced trial lawyers with substantive knowledge of the law, a keen understanding of the trial process, and a good feel what a case might be worth. Caucusing plays a significant role in most New Hampshire mediations. Once the parties have been separated, the mediator commences shuttling back and forth; conveying offers and demands in the manner that the mediator believes will make a settlement most likely. This approach can, and often does, result in a settlement. But is it the best settlement for the parties? Is the settlement responsive to each party's interest, or is it just a compromise? In short, could we do better?

Frankly, the manner in which the Rule 170 mediations are handled in New Hampshire contributes to the tendency to turn the sessions into exercises in neutral evaluation. Too often, the principal parties are absent from the mediation. The presence of a claims adjuster, for example, is no substitute for having the actual party at the mediation. If understanding is the linchpin of the process, then the process will fail if the parties are not even in the room.

Mnookin and Friedman taught us to view conflict as an opportunity to create value. They believe that in most cases there is a solution that is responsive to each party's interests, and not merely a compromise. Caucusing, in their view, traps the parties into distributive bargaining. Instead of asking whether there is a way to make the pie bigger, the parties quickly focus on how many slices each party might receive. The process is short-changed, the opportunity to create value is limited, and the result is less satisfactory.

For many mediators in the classroom at Harvard, the thought of abandoning the private caucus as a tool for resolving disputes was daunting. Virtually all of us had used the private caucus as a "tool" to break impasses in our own mediations. The private caucus also provided a means to protect the confidential information of the par ties. Parties often share information with the mediator during a private caucus that is not to be shared with the other party.

But to Mnookin and Friedman, this too pollutes the process. It is the mediator's job to establish trust and understanding between the parties. If this has been done successfully, they reason, there is no reason not to share the information with everyone in the room.

Many participants in the workshop questioned whether, as a practical matter, they will be able to eliminate private caucusing in their mediations. Nonetheless, by the end of the workshop there was a clear consensus that most mediators were too quick to separate the parties. For Mnookin and Friedman, that realization alone represented substantial progress.

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