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Bar News - January 15, 2010

Private Justice: The Many Faces of Mediation


Some might say that there are different schools of thought about how to conduct effective mediations, but it may be more accurate to say that there are many different rooms of thought on the subject.

Talk to one mediator and he says he prefers to shuttle between the parties waiting in separate rooms, allowing them to privately consider the next step in a negotiation. Another mediator keeps the parties in the same room to hear the other side express its views.

For a field focused on achieving agreement, thereís an awful lot of disagreement among mediators on what approaches work best. But true to their discipline, most mediators donít elevate their preferences for different approaches to the level of arguments.

Instead, the New Hampshire mediators interviewed for this article tended to emphasize that this diversity of approach is a strength, suggesting that a "whatever works" mentality gives mediation the flexibility to work in many different situations with many different mediators.

"The background and approach of the mediator makes a difference, but one isnít necessarily better than the other; itís just a different approach," says Susan Towle, a partner at the Warren Street Family Associates in Concord. Towle has been in the mediation field for more than 15 years and mediates family and probate matters with the Judicial Branch mediation programs. "Thereís one approach that has a more listening/facilitating process, whereas others tend to have more of a resolution-based process."

There are three major areas of the mediation processes where the approaches tend to differ the most from mediator to mediator.

Separate Rooms v. Single Room

One of the most active debates in the field is the question of whether better outcomes are achieved through a single room process where the disputing parties are brought together to work out their differences or through separating the parties and having the mediator shuttle between the rooms to nudge the parties toward agreement.

In most mediations, the start is the same: a mediator brings the parties into a single room and outlines the process. This involves telling the parties that mediation proceedings are confidential, that the mediator is there as a neutral facilitator, and that any decision will be made by the parties themselves. At that point, the mediator will generally hear summaries of the dispute before the actual settlement discussion begins. From there, mediators will take one of the two tracks discussed above.

Separate room mediation is prevalent among commercial mediators when a dispute is based on monetary damages, as well as in family law cases where parties are aggressive.

In situations like this, mediatorís like Terry Shumaker, a long-time ADR practitioner and attorney at Bernstein Shur in Manchester, says that separate room mediation provides an opportunity for a mediator to be candid with each party.

"First, I make sure that they know that settlement discussions are not admissible in court and then Iím clear with parties that what is confidential between the parties stays confidential between the parties," says Shumaker. "Letís say thereís some dirty secret that would likely become public knowledge in a trial situation. I can use that to nudge one party or another through an impasse."

The separate room process works well with so-called "evaluative" mediation. In evaluative mediation there is a neutral facilitator, normally someone trained in the practice area being disputed, who will push discussion along by evaluating the strengths and weaknesses of each sideís argument.

Other mediators believe that single-room mediations are best. This approach is common in family law mediation and in other matters with parties that are not necessarily aggressive toward one another.

Ora Schwartzberg, who runs a private practice with locations in Piermont, Bedford and Lyme, and who has authored a book on divorce titled Divorce Mediation from the Inside Out: A Mindful Approach to Divorce, says that single room mediation can open the lines of communication better than other forms.

"I almost always have people in the same room. I train people to talk to each other," Schwartzberg says. "Often, a couple will come to me and they havenít communicated for as long as two years, and for the first time, thereís real communication."

An open forum allows parties whoíve made matters worse by neglecting communication to work out a problem on their own. This approach lends itself very well to what is known as "facilitative" mediation. Facilitative mediation puts the mediator in the role of a communication specialist who guides the parties to work through impasses on their own.

"It doesnít work unless you get [the parties] together in the same room," Schwartzberg says. "When it comes right from the other personís mouth, thereís no sense of an Ďall for meí approach."

Mediators may use variations of the single room and separate room approaches, mixing and matching methods to make the most of each session.

Special Knowledge Needed?

Some say a mediator has no need to understand the laws that would come into play at a trial, nor even specific knowledge of the matter in dispute. From this perspective, the goal is not to understand the matter, but to identify the underlying reasons for the dispute.

For example, a parent of three dies and leaves his or her entire estate to a single child. The two children left out of the will contest it, contending that the will was out-of-date and mustíve been wrong. A mediator who approaches the matter from the communication-based approach would not need any knowledge of probate laws; to this mediator what matters is not the legality of the partiesí claims, but rather the underlying causes of the dispute, which may include pain at being ignored by a beloved parent, sibling rivalry or some other interpersonal issue.

Rebecca Morley, owner of Lake Sunapee Area Mediation in Newport, NH, has been mediating for more than 10 years. Sheís a mediator for the Judicial Branchís family and district court mediation programs and says that having practice area knowledge can actually impede the mediation process.

"If I had knowledge about the [practice area]," Morley says, "it could actually make me biased toward one party and that defeats the purpose."

Other mediators say that understanding the law involved helps move along negotiations and prevent problems down the road.

"Most mediators wonít discuss the law at all. Mediators canít provide legal advice, but legal advice is telling someone what to do," Schwartzberg says. "Iím talking about informing clients as to what the law is. I think itís important that parties know the law when they negotiate their settlements."

Schwartzberg says that she provides information to the parties about what the laws actually are, what possible outcomes are, what informs a judgeís decision and other practical and important matters. This, she says, lets them know what the risks are when they go to court and let go of control over their settlement.

"We always talk about how the court process will be; there will be high costs and it will take a long time," says Morley. "A lot of times Iíll have people say, ĎI donít want to do that.í That weighs on peopleís minds."

Lawyer v. Non-Lawyer

Whether or not a mediator believes that practice area knowledge is necessary often depends on whether or not the mediator is also an attorney. The debate over whether mediators should have law degrees is not a new one, and the line is often drawn between those with and those without law degrees.

Attorney mediators say that having practiced law can help them understand the factors involved in a settlement discussion.

"In the area of family law, at least, where there are nuances to the law, an attorney practicing in that area knows what the courts are doing," says Ora Schwartzberg. "The clients have a very strong knowledge of the law when theyíre done. In mediation, theyíre actually drafting their own Order."

Melinda Gehris, an attorney mediator and a partner at Hess-Gehris Solutions in Bow, says that while a law degree is not essential, it can be helpful if a mediator wants to be involved in the court-sponsored ADR programs, since attorneys have knowledge of how the court process works.

On the other side of the table are mediators like Susan Towle and Rebecca Morley who believe that mediation should consist of a more communicative approach.

"I donít need to know the laws. I donít need the history. Itís the process," says Susan Towle. "Itís not the mediator making the decisions. What matters is that I help the parties reach a solution that will work for them."

Importantly, those that believe mediators could benefit from a law degree donít always believe that lack of a law degree should bar one from practicing mediation.

"If that were the case," says Schwartzberg, a lawyer, "weíd lose a lot of great mediators."

Editorís Note: In a future article, Bar News will look at the advantages and disadvantages of ADR in the court-sponsored context.

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