Design the Mediation Before You Begin It

In complex mediation, process matters.

There is a tendency to treat mediation as an event: select a date, exchange statements, put the parties in conference rooms, and begin negotiating.

That may work well in a straightforward case. But when a dispute involves multiple parties, difficult factual or legal issues, several decision-makers, insurance coverage questions, ongoing relationships, or complicated personalities, simply scheduling the mediation may not be enough.

Before beginning the mediation, it is worth taking time to design it.

Understand the Decision-Making Structure

In a complex dispute, identifying the parties is only the beginning.

There may be several parties negotiating simultaneously, each with different interests, priorities, and levels of authority. Some people at the table may have the power to make a final decision. Others may have authority only within certain limits. Some may have no formal authority at all.

But formal authority does not tell the whole story.

A person without settlement authority may have considerable influence over the person who does. A lawyer, executive, board member, family member, insurer, consultant, expert, or trusted adviser may significantly affect the ultimate decision even though that person cannot approve the settlement.

There may also be stakeholders who have no formal role in the negotiations and no legal right to determine the outcome, but whose views nonetheless matter. Their support may be important to implementation. Their opposition may make an otherwise sensible resolution difficult to achieve. Their concerns may need to be understood even if they never participate directly in the mediation.

The mediator should therefore spend time identifying not simply who the parties are, but how decisions will actually be made.

• Who has authority?

• Who needs approval from someone else?

• Who influences the decision-makers?

• Who has credibility with them?

• Who needs to be consulted before a proposal can be accepted?

• Whose interests must be considered even though that person has no formal vote?

Understanding these relationships can be critical to designing an effective process.

Start With the Right People

One of the first questions in a complex matter should be: Who needs to be involved, and at what point in the process?

Sometimes the answer is all counsel. Sometimes individual conversations with counsel are more productive.

In other cases, key decision-makers, insurers, experts, accountants, business representatives, board members, or other stakeholders may need to participate early.

Not everyone needs to be in every meeting.

Indeed, putting everyone together too early may make progress more difficult.

Certain participants may need to meet first to narrow factual issues. Others may need to understand the legal or financial realities before broader negotiations begin. Some discussions may be most productive among the actual decision-makers. Others may require people who have influence but no formal authority.

The mediator should also ask what needs to happen before meaningful negotiations can begin.

• What information is missing?

• What issues can be narrowed in advance?

• Are there business, personal, institutional, or relational concerns beneath the legal claims?

• Who needs to hear from whom?

• Who needs to be heard?

• Would a joint meeting be helpful, or would it be counterproductive?

These conversations are not merely administrative preparation. In a complex matter, they are part of the mediation process itself.

Develop a Plan

Once the landscape is understood, the mediator should develop a working plan.

That plan may include preliminary conferences, individual meetings, joint sessions, expert discussions, smaller breakout groups, exchanges of information, meetings among particular decision-makers, or multiple mediation sessions.

The sequence matters.

Perhaps counsel should first identify the issues actually preventing resolution. Perhaps experts need to meet before the parties can negotiate intelligently. Perhaps one discrete issue should be addressed before the larger dispute. Perhaps certain decision-makers need to speak directly. Or perhaps someone with significant influence needs to understand the proposal before the person with formal authority can realistically consider it.

There is no single correct structure.

The point is to make deliberate choices about the process rather than defaulting automatically to the familiar model of opening statements followed by separate caucuses.

Be Prepared to Change the Plan

Good process design does not mean rigid process design.

Mediation produces information. Positions change. Priorities emerge. Relationships among the parties become clearer. Issues that appeared critical may become less important, while concerns that were not obvious at the beginning may prove central to resolution.

The mediator may also discover that the anticipated decision-making structure is not the real one.

The person believed to have authority may need approval from someone else. A participant who seemed peripheral may turn out to have substantial influence. A stakeholder who is not participating may emerge as important to whether an agreement can actually be reached or implemented.

A mediator should begin with a thoughtful plan but remain willing to adjust it as the case develops.

The plan provides direction. Flexibility allows the mediation to respond to what is actually happening.

Both are necessary.

Do Not Try to Accomplish Too Much at Once

Complex disputes do not always need to be resolved in a single session.

Yet there is often considerable pressure to continue negotiating simply because everyone is already present. Hours pass. Fatigue sets in. The focus gradually shifts from making good decisions to simply finishing.

Sometimes the better choice is to stop.

The parties may need additional information. A decision-maker may need to consult with a board, insurer, business partner, executive, family member, or other stakeholder. An expert may need to analyze a proposal. Counsel may need time to evaluate what has been learned during the session.

In multiparty disputes, one group of parties may also need to make progress among themselves before productive negotiations with others can continue.

A mediation that ends without a settlement is not necessarily unsuccessful.

If the parties have narrowed the issues, improved their understanding of the dispute, exchanged important information, clarified who must be involved in the ultimate decision, or identified a realistic path forward, substantial progress has been made.

The objective is not to finish the mediation session. The objective is to resolve the dispute. Those are not always the same thing.

Process Design Is Part of the Mediator’s Work

A mediator should do more than schedule the meeting and carry proposals from room to room.

In a complex case, one of the mediator’s most important responsibilities is understanding the network of interests, authority, and influence surrounding the dispute and designing a process that gives the parties the best opportunity to reach resolution.

That requires thinking carefully about who should participate, who actually makes decisions, who influences those decisions, what needs to occur, in what order, and over what period of time.

• Develop a plan.

• Map out the process.

• Understand the people.

• Remain flexible.

And resist the assumption that every dispute must be resolved in one long day.

Sometimes the best way to move a difficult case toward resolution is to spend more time designing the mediation before the mediation begins.