Intuitive Mediator

The Intuitive Mediator more efficient decision makMediation is often as a ing process than viewed traditional litigation because it allows the parties to take responsibility for their own decisions and to craft agreements based upon their needs and interests. The process is less time consuming and less costly than traditiona I litigation. Additionally, mediation is less formal and leaves room for creativity that is often lacking in traditionallitigation. The intuitive mediator seeks to fully use mediation's usual advantages. During the preliminary stages when the ground rules are set and the process explained, an intuitive mediator will spend time evaluating the parties' decision making styles. Meditation is then crafted to fit the parties' styles. It is not uncommon to see adults resort to decision making styles used during their formative years. For example, a person who grew up in a household that only tolerated one way of doing things, to the exclusion of all others, might, as an adult, have trouble with divergent thinkmg. To illustrate divergent thinking, imagine an ice cube. If you take one ice cube and sit it next to another ice cube, mathematically there will be two. But let's say, the ice cubes are sitting in the sun, eventually they will melt to form one puddle and with further heat they may disappear altogether as they evaporate. So is the answer still two? If a party understands that there may be alternative "answers" tlle decision making process can become more open and creative ..Furthermore, those who step beyond singular thinking may be rewarded with an "a hah" moment, the discovery of an alternative solution which meets their needs. They will bond to that solution in part because they are enamored with their own creativity. In family mediations, the emotional response to winning can often inhibit the process. When a party loves the feeling of "the win" or simply loves seeing the other party miserable the quality of the agreement is affected, as well as the extent to which the parties will adhere to it in the future. In cases like this, mediators need to refocus the emotional element of winning into other aspects of the agreement. For instance, in parenting plans,

by Donna

Bahnc~, Esq., APM

the mediator should focus upon the effects of the agreement on the child. An agreement that matches the needs of the child can also offer the parents the emotional satisfaction of knowing that they put their child's interests first. This may allow a release from the guilt associated .with how their problems are affecting their children. In commercial mediations, protection of the long tenn relationship is not always the goal. Efforts must therefore be focused on the methods each party will use to make the agreement work, as well as how each party will benefit from its success, either from financial considerations or intangible benefits such as having the matter concluded.

-----tllIIIJID1----Mediators need to refocus the emotional element of winning into other aspects of the agreement.

-----tllIIIJID1----1IIl Adapting a mediator's style to the parties inherently promotes better agreements, but sometimes even with the mediator's best efforts a mediation may not be successful. In such a case it is important for the mediator to take the "next step" in encouraging the parties to use what they have learned to continue building upon areas of agreement. When resolutions are finally reached it is not uncommon for the parties to incorporate portions of their first discussions into their final decisions. The mediator should take the extra step of working with the parties to establish a roadmap for how the parties will continue in their decision-making process. Especially when involved in litigation, the mediation may be the first time when the parties and the lawyers actually meet face to face, have read the file or spoken to their adjusters. It is an important opportunity that should not be wasted. As an example, we can consider the success of the following mediation, even though it did not result in an agreement when the mediation concluded. In a rather complex case involving two

professionals dissolving their practice, the parties had not finished discovery before being called to participate in mandatory mediation. Although premature, with the guidance of the mediator they were able to establish their own ground rules for how they would value certain damages once the Court issued a ruling on key legal points of contention. Essentially, there was enough general agreement about how to calculate the damages based upon the facts, that once the judicial decisions were applied, the parties knew how they wanted to settle their differences. By establishing the framework for resolving their differences after the mediation, each party was able to spend its time building their new practices, reducing its legal bills and increasing understanding of the best methods for resolving the dispute.

"The Intuitive Mediator" © written by Donna Bahnck, Esq., APM is a reprint from Mediation News published by the New Jersey Association of Professional Mediators, NJAPM Volume 11, Issue 2, Pg. 6 (Fall 2007)