Mediation is a process which starts at the initial contact with the parties or their lawyers. In that initial contact I want to find out how interested the parties actually are to resolving the case. I also want to start dealing with expectations and the possibility of impasse and how to deal with it. The mediation process runs smoother if the parties have exchanged necessary information, documents, etc. sufficiently in advance of the mediation. Nothing puts an end to constructive progress faster than a piece of important evidence surfacing during the mediation. In my view the parties should be encouraged to share at least part of their mediation submission with the other side in advance of the mediation. If there are matters that for trial strategy reasons need to remain confidential prepare a separate submission to just the mediator addressing those issues. The mediation process works best when all necessary information has been exchanged.
The parties to every mediation have interests that they are trying to satisfy. Whether those interests are substantive or procedural or more of a psychological nature (an apology, acknowledgement of wrong doing, respect etc.) there is always an underlying reason why they want what they want. Ascertaining those interests is the job of the mediator and many times can be uncovered by simply asking the party to explain why their position is important to them.
In contract to an interest, a position is probably best described as being the demand being made on the other party – what they want out of this claim. In the common case of a injury action that is almost always money, “I want $100,000 to settle my claim”. An interest though is deeper than that. An interest is the need or motivation justifying the position – the reason the party wants something. So, in the example of the personal injury action the injured party wants money (position) and the reason they want the money (interest) is to cover medical bills, catch up on their mortgage payments, pay college tuition, start a business etc. When parties negotiate only based on positions settlement can become very difficult and impasse often results. When the interests of the parties are considered negotiating a mutually acceptable result is far easier and results in a more satisfactory agreement.
After over 400 mediations I had finally stumbled upon why so many of those mediations often turned on issues that had nothing directly to do with the dispute – things that were important to the participants and were crucial to getting the case resolved but many times had little or nothing to do with the claim at hand. I had made that very comment in my initial orientation session with the parties more times that I can count, often with amazement: “why many times what is important to the parties has nothing to do with the claim we are mediating…”. And then it finally hit me: what I was experiencing and describing was the fundamental difference between positions and interests.
I have never claimed to be the brightest bulb on the tree and most mediators probably had this “Aha” moment far sooner than 400 plus mediations. Even though I wasn’t able to pigeon hole what I realized into the category of positions versus interests I am relieved that I at least recognized there was more going on behind the scenes of the cases I mediated.
Twenty plus years ago when I was first exposed to mediation as a means to resolve disputes the practice was limited almost exclusively to resolving disputes within the judicial system. Pending lawsuits or threatened lawsuits seemed to be the only use we could imagine at the time for mediation. Resolving disputes that are within the judicial system is still firmly entrenched in the practice of most mediators but the efficacy of mediation has caused society to expand it’s collective imagination far beyond that limited boundary. Presently, it seems the use of mediation as a means to resolve disputes is nearly limitless. Disputes outside the court system are increasingly (and successfully) handled through the mediation process.
Possibly the best example of this involves issues commonly faced by families involving the elderly: estate planning and distribution, financial independence, guardianships, long term care and other related issues. These issues are now regularly being resolved through mediation rather than costly and protracted family fights. Mediation in this setting provides a safe place for family members to find solutions that all can live with and allows for the exercise of the very hallmarks of mediation: self-determination and confidentiality. Pilot programs currently exist in several states that are dealing with this very issue:
While South Dakota is not one of the pilot states at this time mediation can still be used to deal with these difficult issues between family members.
For similar reasons, mediation is also being used on a regular basis to handle issues pertaining to special education disputes between parents, teachers and administrators; to handle disputes between neighbors; issues that are presented to homeowner’s associations, Better Business Bureaus, Chambers of Commerce; workplace disputes between employers and employees; and a multitude of disputes involving organizations of all types. It is an exciting time to be a mediator as the possibilities for mediation are unlimited.
Corey Denevan and I would be happy to discuss with any of you any of the issues addressed in this blog. Please do not hesitate to contact us for your mediation needs.
I spent over thirty years litigating claims and it simply wore me out – physically and mentally. It was my job over that time to fight and try to win for my clients. In the course of that time in an adversarial system I witnessed first hand how an adversarial system negatively impacts all involved in the process: clients, lawyers, judges and juries. The system is particularly hard on the clients and witnesses – it is no fun to have nosy lawyers or insurance companies picking through your life, often times the most personal of details, and only then after enduring that ordeal to have to bare your soul to a judge or jury. Money is spent prosecuting and defending the case over a lengthy time with the result ultimately being one that makes no one happy because of the costs and most importantly because the end result is out of the parties’ control. In most litigated and tried cases, no one wins.
Whether it is mediation or arbitration or some combination or variant thereof, alternative dispute resolution works. In my opinion and experience the success of ADR is well established – anecdotally and otherwise. It saves money and time and wear and tear on all involved. And ADR leads to results that the parties can live with.
ADR can happen quickly and is relatively inexpensive. Most mediations that I do cost about $2000 in mediation fees which is typically split between the parties. With mediation, the end result is one the parties design and control. It is not a decision made by anyone other than the parties. While arbitration involves a decision made by an arbitrator, the end result is designed to occur quicker and with less expense and hassle than a full-blown trial.
I want to see you avoid what I described in the first paragraph above. I want to see you save money and time and wear and tear and craft a result that you can live with. This is why I believe in what I am trying to do by establishing a full-time practice as a mediator or arbitrator.
The previous blog post focused on what the parties can expect from me as a mediator. This installment focuses on what I expect from the parties to a mediation.
As you might expect, first and foremost I expect the parties to be honest with themselves and with me during the process. This applies to any lawyers involved as well. Honesty includes assessing BOTH the strengths and weaknesses of their claim or dispute. It is helpful I believe to sit down in advance and write down both on a sheet of paper and bring that with you to the mediation. Honest assessment of your claim is crucial to success.
Second, and along those same lines I expect the parties to be prepared. Preparation starts with the honest assessment referenced above. It also includes having the documents that you necessarily need to prove your claim or establish a claim of damages. Bring the documentation with you to the mediation and exchange it with the other party well before the mediation is scheduled. Seeing documentation for the first time during mediation is not conducive to the process. Provide that documentation at least a week in advance.
Third, be willing and able to give a good faith effort to come to a full agreement on the issues in dispute. Mediations can be hard work and take a toll on all involved. Understand that, like anything else in life, the more effort you expend the better the result that will likely be achieved.
Fourth, be willing to listen to the other side, communicate with the other side and hear their feelings about the dispute. This can be difficult for some people. When I was defending lawsuits often times the hardest part for me and my clients was sitting while the other side presented their side of the case without being able to immediately chime in and respond. You will get your opportunity to present your side and your feelings so don’t get so caught up in thinking of your response that you forget to actively listen to what the other side is saying.
Finally, I expect the parties to behave in an adult manner, and be respectful of every person in the room. Be patient as well. Mediation is usually a marathon not a sprint.
As always, please contact me if there are any questions or if I can help you with your dispute.
My name is Michael S. McKnight and I am a partner in Boyce Law Firm LLP. I have practiced with this firm for over thirty-one years. My practice during that time has focused on employment law related issues.
I have been blessed with many professional accomplishments but several standout in my mind. I am an “AV Preeminent” rated lawyer by Martindale Hubbel. I have been recognized by Best Lawyers, Chambers and Great Plains Super Lawyers. Our Firm was selected to be the South Dakota representative of the National Workers’ Compensation Defense Network and I was the first South Dakota lawyer to be inducted in to the College of Workers’ Compensation Lawyers. I have been named Sioux Falls Best employment lawyer multiple years in a row and have been inducted in to the National Academy of Distinguished Neutrals. Perhaps my most cherished accomplishment is forming the South Dakota Chapter of Kids’ Chance, a nonprofit that provides scholarships to young men and women whose lives have been negatively impacted by the work related injury or death of a parent.
In March of 2016 I completed my 30-Hour Civil Mediation Training through Mitchell Hamline Law School and the Mediation Center of Minnesota. In May of 2017 I completed the American Arbitration Association (AAA) training and am on the AAA Panel of Arbitrators for employment matters. I have also participated in numerous webinars dealing with mediation training and lectured to employers and HR groups about the benefits of workplace dispute resolution.
At this stage of my professional and personal life my practice is focused on alternative dispute resolution – mediation and arbitration. While the lawyers involved in ADR are familiar with the process most of their clients are not. I view it to be a large part of my job as a mediator/arbitrator to ensure that the participant’s questions are answered and that they understand and feel comfortable with the process. One of the most rewarding aspects of my mediation practice is interacting with the participants, actively listening to their issues and complaints and helping guide them to a solution to their particular problem. As a wise mediator once wrote, “while I am neutral I am not passive” and I believe it is an important part of my job to point out to the participants issues they may never have thought of or perhaps simply wish to ignore. I truly enjoy and have a passion for the people I meet in mediations and get great satisfaction out of helping those participants resolve their disputes.
I was born and raised in a small town in northeastern Minnesota along the north shore of Lake Superior. After playing college football and graduating from South Dakota State University (and after a short stint working on a master’s degree) I attended the University of South Dakota School of Law, graduating with honors in 1986. My wife and I were married in 1981( Nancy is the best thing that ever happened to me) and have four children and (thus far) one grandchild. In my spare time I am an avid outdoorsman focusing mainly on traditional bowhunting and fly fishing. I am also involved in many conservation related causes and am an active public land supporter. Few people know this about me but I played high school hockey against several members of the 1980 Olympic hockey team that won the gold medal and of “Miracle on Ice” fame.
I love helping people resolve disputes probably because I spent over thirty years helping one side or the other perpetuate disputes. I grew tired mentally and physically of the fighting and find my new role in ADR much more rewarding to me personally. Mediation works so well in my opinion because the participants have control over the outcome of the dispute. I am happy to be able to play a part in that success.
I read an interesting study in the Fall 2017 volume of Conflict Resolution Quarterly entitled “What Difference Does ADR Make: Comparison of ADR and Trial Outcomes in Small Claims Court” by Lorig Charkoudian, Deborah Thompson Eisenberg and Jamie L. Walter. This study was the first to compare litigants that participated in ADR to an equivalent group that used the traditional court process immediately and three to six months later focusing on attitudes and change in attitudes of the participants. The results were interesting.
Positive short and long term outcomes were noted in the group that participated in ADR. In comparison with those that went through the standard court proceeding, the ADR participants were more likely to fully and completely resolve their dispute. The participants in ADR felt as though they had been heard and understood, believed all of the underlying issues had been brought out, witnessed the issues being resolved and bore some responsibility for the situation. The participants learned to appreciate the other side of the story, gaining a new respect for the other party. Even those ADR participants that did not reach an agreement experienced positive attitudinal shifts toward their adversary, a sense of empowerment and having been heard in the process and overall satisfaction with the system. The ADR participants felt better about what had happened than the non-ADR participants.
Might similar sentiments be experienced in a study of ADR in the workplace? In my opinion the answer is undoubtedly yes. People like to have control or at least feel in control of their own destiny. Mediation is a voluntary process wherein the participants control the outcome. After thirty years of handling workplace disputes one fact is crystal clear to me: the participants in a workplace dispute want an opportunity to be heard, to have their day when someone actively listens to their version of events and affords them respect. People want issues to be brought up and resolved on their terms. Imagine the benefit in the workplace that would flow from a positive attitudinal shift between two or more disputing individuals or groups.
As always, let me know if there are any questions
Thirty plus years of handling employment disputes of one form or another has led me to reach several conclusions concerning these disputes and how to best resolve them. While mediation is more of an art than a science and no one thing will guarantee success at a mediation, there are a few things to consider that will increase the chances of a successful mediation of an employment claim.
First, mediation should be attempted after sufficient information has been exchanged for both parties to have an understanding of the strengths and weaknesses of their case, but still early enough for both sides to save costs. Without an exchange of information providing a basis for the claims, defenses to those claims and an idea regarding the damages at issue, the mediation will be less effective as the parties will spend the mediation attempting to understand the other side’s position. That said, it is seldom necessary for depositions and document production prior to mediation. One of the best ways to ensure that both sides understand each other is to simply require the parties to exchange the factual portion of the mediation submission to the mediator as well as the opposing party.
Second, selection of a mediator can be very important in the employment case. This means taking into consideration the personality of the mediator as it relates to the personality of the parties, as well as considering the mediator’s substantive experience in handling employment disputes. The parties should seek a mediator with a personality that will assist settlement – not impede it. Given the sensitive nature of most employment disputes, hiring a mediator that understands the volatile nature is invaluable.
Third, from the employer’s standpoint, consider bringing someone the employee liked or respected while employed with the employer to the mediation. And, for heaven’s sake, do everyone a favor and do not bring the alleged harasser to the mediation.
Fourth, parties often wonder whether having a joint opening session is a good idea. While much has been written in the mediation world about this topic, from my experience, opening sessions are a great opportunity for both sides to provide information they feel is important about the claim so that each has a better understanding of the issues. Do not cover up the bad facts and weaknesses of your case. Instead, disclose them early on and create credibility with the mediator and the other side.
Finally, have some rational explanation for your offers and counter offers. Be flexible and willing to listen and do not react emotionally if possible. Never forget that it is the mediator’s job to help both sides to reach a reasonable resolution and doing so takes time. Be patient and creative. While money is always a motivating factor, many employment disputes end up resolving because of non-monetary terms. As I learned in my EEOC training, many employment cases end up resolving with an apology being as important as any other term.