Facilitative Mediation --How do you know you don't like it if you haven't tried it?


I had an interesting conversation with a younger lawyer not long ago. She and I are on opposite sides of a rather complex real property case involving multiple parties and obscure legal principles. She comes from a law firm known for a strong commitment to litigation on behalf of it's clients so I was surprised when she told me that she had just completed her general civil mediation training and that one of her classmates had been one of the state's most prominent real property experts. I asked her what she thought about her experience and she told me that completing the training had really been eye opening for her. When I had to ask why, she said that before completing her training her previous experiences with facilitative mediations had had been mostly unsatisfying and frustrating. She had been waiting for the mediators to share their substantial legal experience, their knowledge of the assigned judge and their opinion of the value of the respective cases. When that hadn't happened she felt as if she had wasted her time and, worse, her client's time.

Her observations reminded me of a panel discussion I had attended several years earlier on the merits of joint session in the mediation of litigated cases. Two members of that panel were highly accomplished and very successful proponents of joint session in facilitation. The other two panel members were legends of the trial bar who because of their stature and experience where frequently asked to mediate complex civil cases.

When asked if they used joint session in their mediations, both litigators admitted that beyond initial introductions they seldom, if ever, used joint session in any meaningful way. When pressed they both said that, as litigators, they didn't want warm, fuzzy thoughts undermining their litigation strategies; they didn't want their clients wasting their time and resources on understanding the other sides needs and interests; and, that all they wanted from the mediator was his or her assessment of the value of the case, and the proclivities of the assigned judge. Both litigators admitted that, despite their mediation training, their philosophy as advocates colored their respective approaches as mediators. They both favored the evaluative approach and avoided the use of joint session.

I asked my new, young friend if she had received any mediation training in law school? She told me that she had graduated just as one of the ground breaking training programs on the country was initiated at her law school. We talked about the development of that program and the success they had achieved on a national level since she'd graduated.

Finally, I asked her if her recently completed training had helped her in her practice and if it had changed her perception of facilitative mediation? She said, "You know, now I get what the mediator is trying to accomplish. I am able to better understand how they are trying to help me and I am better able to assist my clients in the development of imaginative options and solutions. I think this will help me be more imaginative and creative in the representation of my clients. I think it will allow me to be a better more effective counselor and advocate."

We went on to develop a couple of options for settling our case that neither she nor I had considered up to that point. I hung up the phone feeling pretty good about the future of legal practice in Michigan. The lesson for me is that the landscape is changing. The way we represent our client's best interest is evolving. If, as counselors, we don't understand the object of the exercise our client's are handicapped.

Facilitative mediation is not case evaluation, facilitative mediation works! The number of lawyers and judges that don't understand the difference is astounding. We owe it to our profession, to our clients and to our society to get trained, to learn the skills and to combine that training and those skills with our legal expetise to maximize our client's opportunity for constructive, productive economical outcomes. If you haven't tried it how do you know you don't like it?


Phillip A. Schaedler is a certified civil mediator by the Michigan State Court Administrator's Office and the American Health Lawyers Association. He is a member of the Federation of Defense and Corporate Council, the Association for Conflict Resolution and the Michigan council for Family and Divorce Media He is a member of Professional Resolution Experts of Michigan, http://premiadr.com.

Published: Mon, Jan 04, 2016


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