a UNIQUE APPROACH TO MEDIATION
Click an icon on the right to learn more about the benefits of our unique approach to mediation featuring, among other innovations, risk-sharing (see "Cost"), and a strong focus on key psychological principles at play in mediations (see "Mindset" and "Process").
We Share Risk: Resolve Your Dispute . . . Or We Cut Our Fee in Half
Mediators are typically paid in full whether a dispute settles or not. But since the goal of mediation is a settlement, if no settlement is reached, then (in our view) the parties did not realize the full value of the mediation.Of course, many mediations fail for reasons beyond the mediator’s control. Nevertheless, we don’t look for excuses, and thus if we fail to resolve a dispute, we will remit 50% of any fees earned back to the parties (a copy of our mediation agreement illustrating how this works, depending on whether we become involved prelitigation or after a litigation has been filed, is available for review upon request).
We Don't Rush Parties Into Decisions They May Later Regret
In our view, marathon single-day mediation sessions oversimplify contentious issues, fatigue participants, force instantaneous decision-making, and produce results that may later be questioned in hindsight and lead to further litigation.
The best win-win settlements need time to percolate. To that end, we communicate one-on-one with the parties in a structured process that typically takes at least 30 days (learn more about process on the "Process" tab).
We find 30 days is typically the minimum necessary for the mediator to build the trust and rapport the parties need to feel before they will fully confide in the mediator and share the underlying needs and interests at the heart of the dispute. That is, we feel parties require adequate time to grow comfortable with the process, and carefully assess the pros and cons of the mediator's proposals. We do not believe any party should be rushed or intimidated into making snap decisions to settle on terms they may later regret.
Once the mediator develops a strong understanding of the parties' respective needs and interests, he or she is able to craft creative win-win proposals for resolution that directly address those issues.
We Don't Split the Baby; We Expand the Pie
With due respect to King Solomon, we don't believe in “splitting the baby.” That’s the mental image that arises in the mind of many parties considering mediation: a “neutral” convincing one party to pay more, and the other party to accept less, so they meet somewhere in the middle.
In contrast, we look to “expand the pie” – that is, find out what needs and interests are motivating the parties, and expand the solution beyond purely distributive issues to other exchanges of value that create “win-win” solutions.
Part of this process involves parties ranking their needs and interests in order of priority. Ranking reveals bargaining zones that enable a mediator to suggest exchanges whereby a party that ranked a certain interest lower can trade it to the other party who rated that interest more highly in exchange for something the former party has prioritized. Such trades often take advantage of what are known as the "endowment effect," a psychological principle to which we pay careful heed in mediations.
For example, salary negotiations are frequently viewed as a purely distributive exercise; if one party makes less, the other party makes more. However, if the pie expands to include other issues, such as vacation days, working from home, bonuses tied to performance bonuses, and other issues valued differently by the parties to the negotiation, then the opportunities for creative solutions increase.
The outcome of "pie expansion" is "win-win" solutions that leave both parties feeling they came out ahead.
We Focus On Needs and Interests, Not Legal Positions
Lawyers tend to reframe parties' needs and interests as legal positions because that is how the adversarial system works. But legal positions are ultimately symptoms of underlying issues. For example, a lawsuit to enforce a product placement contract is likely a symptom of an underlying business interest: increasing product publicity to boost sales.
In a mediation over an alleged breach of such a contract, if the parties are pigeonholed into fighting over specific provisions of the contract (e.g., is a particular clause unambiguous or not), then the mediation will either fail, or achieve a suboptimal result at best. However, if the parties shift their mindset to focus on the underlying business interests, creative solutions will become apparent.
To begin the process of identifying needs and interests, a mediator should boldly ask each party what outcomes would be in his or her (selfish) best interest (after confirming that all answers will be kept confidential unless otherwise authorized). Beyond financial concerns, responses will often identify political considerations, such as not wanting to appear incompetent to coworkers, or not wanting to be blamed for a problem inherited from a predecessor.
The mediator must be tactful yet relentless in probing needs and interests. Like peeling an onion, the ongoing give-and-take between the mediator and the parties over an adequate time period will inevitably uncover previously overlooked, yet festering and important issues that must be addressed to arrive at an optimal settlement.
Our process is rigorous and deliberate, including adherence to the following three principles:
#1: We Caucus Extensively to Build Trust and Rapport With Both Sides
Traditional mediation primarily uses joint sessions attended by both parties and their counsel. But in our experience, joint sessions inevitably result in less overall information being shared. Human nature leads parties to be guarded when conversing with their adversary. That dynamic reduces information, and less information prevents the mediator from becoming aware of potential bargaining zones that could lead to settlement.
Additionally, in joint sessions, parties often take statements by the other party personally (a psychological principle known as Hanlon's Razor). They also tend to posture or try to score points. The negative emotions engendered by these "knee jerk" reactions can impede progress towards a resolution.
By prioritizing caucus, our mediators gradually build the trust and rapport necessary for each party to open up and share their underlying needs and interests with the mediator. Armed with this information, the mediator can more effectively facilitate an exchange of reciprocal benefits for both parties.
That is not say joint sessions can't be productive. To take one example, two principals meeting together with a mediator can often make great progress if each is able to share their side of the story without interruption, judgment or criticism. Still, we feel that caucus must at least precede joint sessions to lay the groundwork for respectful dialogue that builds momentum towards resolution.
#2: We Heed Emotions
Mediators often view emotional outbursts as unpleasantries to be ignored, or necessary venting that parties need to “get out of their system” before they can progress to level-headed discussion.
We respectfully disagree. Human beings are emotional creatures, and mediators must therefore be prepared to deal with the full spectrum of psychological biases. This includes, for example, learning how to handle high conflict personalities by reorienting such individuals away from blaming towards problem-solving.
Accordingly, we believe a mediator should interpret an emotional outburst as a potential goldmine signaling that the issue at hand hit such a nerve that it is likely both the source of, and the solution to, the conflict. In short, we view strong expressions of emotion as sources of information about hidden underlying needs and interests that can be used to gain momentum towards a resolution.
Moreover, it is often necessary to validate and resolve underlying emotional issues before a deal can be struck. To paraphrase Robert Kindler (formerly an M&A partner at Cravath, Swaine & Moore), “even settlements that make absolute economic sense do not happen unless emotional issues are addressed.”
#3: We Communicate Effectively and Frequently
All forms of communication are not equal. Anyone who has tried to decipher whether their spouse is angry from an email knows that some forms of communication inherently lack expression. Context plays a dominant role. Proper mediation employs unique hierarchies of communication that facilitate understanding and disclosure.
Communication that occurs in-person, one-on-one, is most effective at building the sort of personal relationship and high level of trust that leads to the disclosure of the information that the mediator needs to craft optimal proposals. Therefore, ongoing one-on-one meetings with the principals on both sides geared towards problem-solving (supplemented by regular phone calls), are a central feature of our process.
There Is No Impact on Pending Litigation
For disputes already in litigation, parties considering mediation may be concerned about avoiding any action that could be interpreted by the opposing party as showing weakness; neither side wishes to blink first.
If parties wish to pause litigation, arbitration, or any other adjudicative process to mediate, we are happy to accommodate. On the other hand, should the parties decide to let mediation proceed as a separate endeavor that runs on a parallel track concurrently with any judicial process that is already pending, that is fine too.