PBCBA BAR BULLETINS pbcba_bulletin_december 2017 - Page 11

MEDIATION C o r n e r Mediation: What’s Going on in the Other Room? CLE Audio Library RICHARD LORD “What’s going on in the other room?” or a similar question, is sometimes asked when things fail to proceed as smoothly as you would like in mediation. What’s going on in the other room may be necessary, even if not welcomed by you. Counsel and client should resist the urge to reciprocate, be impulsive, or act impatiently. When things aren’t proceeding as planned, it may be that the other room has to work through things first in a certain way before they are able to work through things in a manner to your liking. Since people are complex and imperfect, communication, analysis and negotiation are often complex and imperfect as well. The surest way to scuttle the process is to let impatience have an outsized influence. You do not have to agree with the “whys and wherefores” of the imperfect process, but not accepting the existence of complexity can lessen the chances of a successful mediation. Mediation is a process that calls for patience, and you should prepare yourself and your client for possible frustration. Rule 10.360(b) of the Rules for Certified and Court-Appointed Mediators provides that “Information obtained during the caucus may not be revealed by the mediator to any other mediation participant without the consent of the disclosing party.” Remember, mediation is a process. Preparing to both advocate for and advise your client based on the law, facts, procedure, and personal and business considerations is incomplete preparation for that process. Preparing yourself and your client to deal with possible frustration and impulses makes your preparation more complete. Preparation should create an atmosphere of patience and flexibility, which in turn increases the odds of success. When your mediation gets choppy, consider that things may be happening in the other room that are necessary. And when you are working through things in your room, the other side may just ask your mediator, “What’s going on over there?” We each have personalities and are all influenced by our experiences, perceptions, and emotions. This is layered on top of the facts, law, procedure and context of the matter being mediated. You can influence what is going on “over there”. Don’t be afraid to leave posturing behind sooner. Be willing to try what your mediator suggests. If progress stops, try different approaches. If all else fails, consider whether the process should be adjourned and resumed on a different day, perhaps in a different procedural context, with different decision maker(s), or more information. To discern what is going on “over there”, ask questions. You can ask counsel directly if you have rapport, and make what observations you can. Ask your mediator what he or she can share and how things can be interpreted. The totality of our experiences molds our assumptions and feelings about progress. But, remember, we may not be at liberty to tell you everything that’s going on in the other room since Short on CLE credit? Check out our audio library of seminars listed on our web-site at www. palmbeachbar.org. Ordering is available on-line or by mail. Audio is available in the following areas of practice: ADR Appellate Bankruptcy Business Civil Trial Commercial Litigation Construction Criminal Diversity Employment Estate and Probate Family PI/Wrongful Death Professionalism Real Estate Securities Technology Workers’ Compensation SAVE THE DATE 2018 Bench Bar March 9, 2018 “Working Together to Serve Better” PBCBA BAR BULLETIN 11