The 12-Step Mediation Process As Practiced by Lawrence D. Tobias MS, MBA

For those of you who are relatively new to the process of mediation, and also for those of you with some background and experience in the process, let me provide a brief top-of-mind and topline intro into how I view and practice mediation.

PRELUDE TO THE PROCESS:

1. The respective parties all agree to pursue mediation as a means of resolving their dispute.

2. The respective parties select a mediator.

(Note that in the event of a court-ordered mediation, the court not only requires mediation, but typically also selects the mediator from a court-appointed roster, unless the parties agree to an alternate mediator.)

(I am going to assume that you select me, Lawrence D. Tobias as your mediator, and consequently the process that I recommend below):

[Note that this flows from a complex landlord/tenant case that I recently mediated successfully, and that parts of the mediation process, specifically those addressed in Section 6, as stated below, will likely vary from one case to another]:

3. The Pre-Mediation Teleconference

I schedule an initial teleconference of all parties to set up the process, during which I, as the mediator:

a. Develop a summary-level understanding of the case and the issues involved.

b. Emphasize the inherently confidential nature of the mediation process and encourage the provision of any and all information.

c. Facilitate the exchange of information that is potentially relevant to settlement, and establish a time and events schedule for said exchange.

d. Determine which parties with the necessary settlement authority are required to either attend the mediation session or be available for settlement decisions during the session.

e. Request copies of all pleadings to date, and any future updates.

f. Determine the existence and status of any motions that are relevant to the case.

g. Determine an approximate date for the mediation to occur, which will be confirmed within a week or two prior to mediation.

4. Just prior to the mediation date, I confirm the venue and timing for the mediation; identify and confirm the attendees; validate receipt of all pleadings to date; and request any non-submitted items.

5. Within a week of the mediation, all parties provide to me, confidentially, their brief summary of their position regarding the dispute, which should include any demand or offer they may wish to provide to begin mediation.

THE MEDIATION PROCESS:

During the mediation process itself, I, as the mediator:

1. Typically begin by assembling all parties, warm up the audience, and establish my presence as their neutral mediator.

2. Briefly review the mediation process and establish ground rules for the mediation process.

3. Set up a general but flexible agenda that consists of the following steps, not necessarily in the order shown:

a. Joint sessions with all parties and their counsel.

b. Caucus sessions with a respective party and their counsel.

c. Joint or caucus sessions with party counsels, only.

4. During these joint and caucus sessions, I seek to achieve the following:

a. A clear understanding of the facts of the case as viewed by each of the parties. (Joint and then Caucus)

b. Respect and empathy for the other party’s point of view. (Joint and then Caucus)

c. An analysis of the strengths, and weaknesses, opportunities and threats (SWOT) presented for each party’s case. [Here, acting in a Socratic fashion, I would ask the respective party to attempt to convince me of the merits of their case.] (Joint and Caucus)

d. Recognition by one party for the SWOT of the other party. (Joint and Caucus)

5. The SWOT analysis is highlighted in what I call the “Show Me” stage which is prepared for in caucus and orchestrated in joint session:

a. Each party, beginning with the plaintiff, in turn is asked to address their key “evidence” in order of importance

b. Opposing parties listen to the arguments, and then have a chance to present their counter arguments.

c. I, as the mediator, keep the parties focused on each individual piece of evidence, discussed in their perceived order of it's relative importance.

d. After each individual piece of evidence has been presented and discussed, I then ask each party, in turn, to connect the pieces of information together, and make a case for the whole being greater than the sum of its parts.

e. The opposing party listens to the “summation” and then presents its counter-arguments and its own summation.

f. At the conclusion of the show me process, I as the mediator, allow the parties to now have a significant amount of back and forth, and “stay out of the way” as the parties defend their own positions and attempt to dilute the positions of the other parties.

6. Typically after the “show me” stage of the mediation, I will then caucus with each party regarding opportunities and threats related to the case, with a focus on “walking in the shoes of their opponent” regarding their perspective on how their opponent might view their respective greatest threats and opportunities.

7. Next, again in caucus, I would facilitate the determination of the range, and desirability of possible outcomes and their likelihood should a mediation settlement not be reached.

a. Part of this would involve facilitating the determination as to whether the best alternative to a negotiated agreement (BATNA) is desirable and worth the risk in lieu of a mediated settlement. (One likely BATNA here would be pursuing litigation and a legal outcome!)

b. When monies are involved, as they often are, one key question is: “How deep are your opponents pockets now, and how deep might they be at the conclusion of any litigation?”

8. I would then facilitate tradeoff analysis with both parties (initially in caucus and then jointly) leading toward consideration of a mutual middle ground where opportunities for each respective party are maximized while potential threats are minimized.

9. Parties would then discuss creative options for settlement that are not viable with litigation. (In caucus and jointly)

10. I would then assist in the negotiation of various offers and demands. (Jointly, in caucus, and, occasionally in either joint or in side-bar caucus with the party’s lawyers).

11. All of these steps would then lead to agreement regarding the terms of an informal settlement.

12. I would stay until the formal settlement agreement is composed, and formally signed by all required parties, and facilitate addressing any issues that might arise in the process.

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In summary, I want to emphasize that I am involved in the process of mediation within the context of the practice of mediation. Given the interpersonal dynamics involved in the process, and the complexity and variability of the ingredients (i.e., the mediator, the parties, their respective counsels, and the issues), the information presented above is much less a recipe for mediation, than it is an outline for the practice of an art form! No two mediators will approach a given case on a given day in the same way.

My preferred mode of mediation is facilitative, but when parties become “stuck”, I may find it useful to shift, as necessary, to an evaluative, or even a transformative style, the nature of which are beyond the scope of this discussion.

Lawrence D. Tobias MS, MBA

Professional Mediator

[email protected]

(862) 812-0698