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Mediate? Why Not?

Mediate? Why Not?

This Legal Lines article was written by B. Brittany Scantland-Lall esq.  Mrs. Scantland-Lall is an associate with the law firm of Murray, Dahl, Kuechenmeister & Renaud LLP. She represents local government clients in court and administrative hearings and provides legal counsel to public officials and staff on topics such as public records, open meetings, elections, and municipal tax.  She is an adjunct professor in the Business Ethics and Legal Studies department of the University of Denver and is a volunteer mediator for the CBA/DBA Court Mediation Service.  Mrs. Scantland-Lall welcomes questions about the article and can be reached at 303.493.6670 or emailed at bscantland@mdkrlaw.com.

Introduction
The purpose of this article is to examine ways an organization deals with conflict and to explore one specific type of conflict resolution: mediation.  The invitation is to reflect on any current (or growing) conflicts in your organization.  Consider land use disputes, council-manager disputes, council-council disputes, staff-manager disputes, or similar situations.   Are negative relationships affecting your organization’s productivity?  There are no hard and fast rules as to when a particular situation is ripe for mediation.  Why not consider addressing the issue before it becomes a full-blown dispute which serves to disrupt your organization?  Why not address it now?  Take a moment to audit pending conflicts.  Which ones might benefit from mediation?  Why not take action to resolve them and move beyond them?  Consider the emergence of a conflict as an opportunity to change course, change direction, and change perspective through a mediative process.

Resolution 11-049
October 2011 was Conflict Resolution month in Colorado.  In Joint Senate Resolution (“Resolution”) 11-049, the members of the Colorado General Assembly formally joined Governor Hickenlooper in recognition of the import of this month.  Among other benefits, Resolution 11-049 recognized that dispute resolution, encompassing the disciplines of mediation, arbitration, facilitation, collaborative decision-making, ombuds activities and restorative justice are all processes which empower individuals, families, communities, organizations and businesses to foster communication and devise solutions that are acceptable to the needs and interests of all parties involved.  The Resolution goes on to recognize additional benefits: the process is party-centered, creative, creating durable interest-based reconciliation, increased satisfactions of the parties involved, preservation of relationships and decreasing likelihood of strained relationships in the future.  Resolution 11-049.  These benefits will be explored in this article.

A Plethora Of Benefits
As Resolution 11-049 highlights, there are numerous benefits to conflict resolution, which would necessarily be found in the mediation process:

Benefits:
Party-centered: Mediation focuses on the parties.  There is tremendous value in a party expressing his/her impression of what has occurred and that same party hearing what the other party believes to have occurred.  In the context of court, these narratives get distilled to legal principles which may treat the symptoms of the dispute, but not the underlying conflict.

Creativity: In court, a judge or jury is going make a ruling on facts based on application of law to the facts.  As to each issue before the court, a party will either win or lose.  Often the facts and law alone are not enough to resolve conflict; often there are underlying issues that may have to do with reputation, status, relationship, etc. that a court will not likely consider.  In mediation, the parties can actually craft resolution around these intangibles.

Interest-based reconciliation: The distinction of interest vs. position based negotiation is not a new concept, but plays a key role in mediation.  Imagine you are a manager and ask a disgruntled employee why there is tension between her and Judy – two possible responses might be:

  • A: “Judy creates a hostile work environment.  I cannot share office space with her.”
  • B: “I can’t concentrate when Judy is seated near me.  She makes several personal phone calls a day and is a loud talker.

The position the employee takes in “A” really gives you, as the manager, no substance.  “B” gets to the heart of the frustration.  With “B”, you can begin to work on ways to remedy Judy’s disruptive phone habits, rather than simply dismissing the entire situation.  Both of these stances could lead to a log jam in the working relationship, but “B” allows for a place to start the discussion and determine if the issues can be resolved.  “A” is the start of a lawsuit and “B” is the beginning of a conversation.

Increased satisfaction:True, some satisfaction may come from winning in a courtroom, but even more satisfaction is possible when the parties feel as if they have been heard and have actively participated in crafting the resolution.  This even holds true for a party who has had to make several concessions.

Preservation of relationship & fostering communication:What happens as conflict builds?  Communication falls apart and relationships suffer, if not fail. In fact, at certain points, litigation actually prevents the parties from talking.  Mediation requires the parties talk to one another.

Consider the council-manager dynamic.  At some point, it will happen that the City Manager takes action that seems inexplicable to councilmembers.  While the council was not necessarily part of the decision making, they received word of the action taken.  Little by little, tension builds.  Councilmembers become skeptical of any action the Manager takes, and the Manager becomes increasingly defensive over time.  After a while, nobody can actually identify what triggered the tension, but conflict (even passive conflict) has defined the council-manager relationship.  A facilitated conversation between the Council and the Manager can go a long way to give the parties a structured, safe mechanism for airing concerns and moving beyond the conflict.

Decreased likelihood of strained relationship in the future: Here is one of the great wonders of mediation: parties not only have the opportunity to resolve a current dispute, but they can also be forward-thinking and lay the groundwork for how disputes will be handled in the future.  The empowering effect of controlling one’s destiny should not be underestimated.

For example, the parties might include a clause in the Resolution Agreement that states: “To increase communication, we agree to set regular 30-minute meetings for Wednesday mornings.  Further, if X happens again, we will refer the matter to mediation if the matter cannot be informally resolved within 5 days of the occurrence of X.”

Listening: A more nuanced benefit of mediation is listening.  The parties must actually listen to one another to participate in an effective mediation.  Active listening may involve a party stepping into the shoes of the other party and (even briefly) seeing the dispute through the other party’s eyes.

Control over process & outcome: In mediation, the mediator will provide a structured process; however, the process can be adjusted to meet the needs of the parties.  Further, parties control the outcome, rather than a court.  The parties are the best ones to know what is truly needed to resolve a situation.  They can devise the best resolution to a situation.  Having actively crafted the resolution, parties are more likely to adhere to it.

Financial & emotional impact: Litigation is expensive.  Of course, mediation in certain contexts is not a feasible answer; our courts were created for a reason, and turning to a court for judicial relief is a process and remedy that should be honored, but not overused.

Litigation can also take an emotional toll.  This is experienced not just by the parties involved, but also on employees who work with or worked with one or both of the parties.  It also may be emotionally exhausting for family, friends or a board of trustees or city council.  Those individuals may have relationships with one or both of the parties.  Not every dispute or conflict merits the resources (time, money, emotion) that are required to navigate the court system.

Consider these two responses to a threatening letter which states if the City does not allow a particular company access over the City’s easement it will condemn the access necessary (assume for the moment the company would have the right to do so):

  • A: The City has an easement, and there is nothing this company can do to it.  Let’s just say “no”!  Have them try to condemn our easement rights!
  • B: Company, why do you need access over the easement?  How deep will you need access? The City’s easement is for a sewer line, so it is essential that it continues to have access over the easement.

“A” launches the parties into condemnation proceedings and further expense. “B” allows for a discussion regarding the company’s interest and opens the door for a win-win solution.  In a similar situation that actually occurred, the City’s sewer line was much deeper than the company would ever need to access, and the overlapping easements would only exist at one point.  The parties were able to negotiate a simple agreement as to the administration of their overlapping easements.

Confidential: In mediation, a ground rule that is often laid (and recommended) is confidentiality.  This allows the parties to raise any and all concerns.  Do be aware, however, if it appears that one or both parties are only entering into mediation as a pre-trial, fact-finding mission.  Confidentiality should not be abused.

Once a complaint has been filed in court, the details of the dispute are public information.  True, there may be times when this publicity is the desired result; however, there may be times when this is simply not necessary.  A confidential mediation process might be best for some situations.

Court is a default: There might be times that even after the most well-intentioned mediation, the parties need to proceed to court and have a judge or jury determine their case.  Mediation does not prevent a case from proceeding to court.  Even if mediation does not bring the parties to a full resolution, it might serve the purpose of narrowing their positions or the list of issues to be litigated.

Process
If a situation in your organization may benefit from mediation, what can you expect?  Mediation will provide a structured process, the goal of which is resolution.  Ideally, the resulting resolution not only addresses the dispute that brought the parties to the table, but it lays the groundwork for either eliminating or setting the rules of engagement for future disputes.  The process could take 2 hours or several meetings.  Each situation is different.  Below is an example of how the mediation will likely proceed:

Steps:
Agreement to Mediate: The first step in a formal mediation is an agreement to participate in the mediation process.  Look, the parties have already agreed on something!  General terms include: the role of the mediator, confidentiality, and mediator compensation.

Pre-mediation contact: Depending on the depth of the issue, the mediator may touch base with each party first to determine what each party sees as the issues, and determine logistical considerations such as where the mediation will take place and how much time should be scheduled.

Establishing a process: The mediator will generally describe what s/he sees as the process that will be followed.  However, if the parties feel strongly about using a different process, a mediator will generally be open to crafting the process to meet the specific needs.

Narrative: Each party has an opportunity to explain his/her side of the story and what the issues are.

Response: Each party has the opportunity to respond to what they have heard.

Issue identification: As the process moves forward, the mediator will restate and narrow the issues to be visited and help the parties work to resolve each in turn.

Caucus: There can be caucuses – a time for each of the parties to speak to the mediator alone about their specific issues or concerns.  But remember, mediation is not a settlement conference.  A mediator (unless an exceptional situation truly merits this) will not shuttle back and forth to communicate messages between the parties.  Otherwise, the benefits of communication will be lost.

Resolution Agreement: If a resolution is reached, the parties will enter into an agreement at the conclusion of the mediation to memorialize the resolution.  If at all possible, have the mediation in a location where a mediator can type and finalize the agreement at the conclusion of the mediation.  The parties can then leave the mediation having signed a final agreement. Include terms in the agreement to plan for what happens if a term in the agreement is vague or needs interpreting at a later date.  These documents should be as detailed as possible.  Like any contract, this agreement can be breached and enforced in court.

ConclusionIt is highly likely that at least one dispute in your organization could best be served by mediation.  The process is flexible and can be as formal or informal as needed.  Audit any current issues your organization is facing.  Try the process.  Why not mediate?

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