Rethinking Civil Mediation: Lessons from “Social Distancing” and Family Law

The COVID-19 outbreak, with its related shelter-in-place and social distancing edicts, put us all on pause.  This break has created time and space to rethink many things, including why we do what we do.  In the context of disputes and civil mediations, it’s a prompt to ask how we got here and isn’t there a better way?

Here two thoughts intersect: First, the civil mediation model we adopted long ago is often counterproductive.  Second, the lawyer version of “social distancing” that has evolved over time has not helped.  However, a solution is at hand, if we only change how we approach disputes.  As it turns out, we have much to learn from family law mediation.

Getting off on the wrong foot:  Starting a few decades ago, civil mediation practice emerged, mimicking late stage mandatory judicial conferences — marathon sessions held shortly before trial.  Often conducted by retired judges more practiced in calling balls and strikes than exploring solutions and alternatives, private mediation sessions were also typically postponed until all the pre-trial or pre-arbitration work was done.

While parties are often better informed by the eve of trial, delaying mediation creates other problems.  Among them are lost opportunities to pursue alternatives before they evaporate (reinstatement, reworked contracts, etc.) as well as sunk costs in terms of money and time that may eclipse the real value of the dispute.  As importantly, delays in reckoning often result in more entrenched positions, as both clients and counsel overweight the perceived positives and underweight the much more predictable negatives.  More on this later.

“Social distancing” in the legal profession: Long before “social distancing” became part of our vernacular, the legal profession created its own version – call it “professional distancing.”  Over time, electronic communications like email supplanted many face-to-face and even telephone conversations.  Despite its other virtues, email is a poor substitute for real conversation – substantive exploration of positions and objectives – and instead more a tool for declarative statements.  But it is how we evolved, for better — and in this case — worse.[1]

Without direct conversation – in person, via phone or videoconference – gaps in understanding facts as well as objectives linger on.  Meanwhile, positions harden and sunk costs grow, making recalibration and later compromise more difficult.

How do we know this is happening?  Ask any experienced mediator: How often do opposing counsel appear before you without having previously met?  How often do they report having held no prior direct conversations about the merits of their case?  The answer to both questions, unfortunately, is far too often.

Face-to-face exchanges can be hard. Substantive phone conversations aren’t always easy.  However, they are infinitely better than the later “how in the world did this happen?” conversation between client and counsel when the late-stage mediation reveals a major misunderstanding or problem and the rationale for fighting on has evaporated.

So what to do?  First, recognize that the term “alternative dispute resolution” has become a misnomer. Over 90 percent of state court cases resolve short of trial. The percentage is even higher for federal court cases.  While some outcomes are due to voluntary or involuntary dismissals, the vast majority resolve through settlement.  Hence, ADR tools like mediation are not the “alternative”; they are where we spend most of our time.

Second, start the mediation process early – not just scheduling a mediation but starting the merits conversation with adversaries.  It’s not complicated.  We are trying to understand what you see differently.  We want to share how we see it.  Tell us what we’re missing.

Here, effectiveness depends upon candor, so please abandon the tired response that we’re not going to provide “free discovery.”  If these exchanges are reciprocal, they are not “free.”  If anything, they are far less costly than the cumbersome process of formal discovery and the satellite battles and costs they routinely produce.

You may indeed surprise your adversary when you suggest direct conversation about merits, alternatives and solutions.  Remember, many lawyers have not been practicing this way for some time, if ever. They may at first misinterpret your direct approach as a trick or sign of weakness.  Hence, it may take a few tries to clarify that you are trying to get to the bottom, and ideally the end, of the dispute more efficiently.

Third, prepare thoroughly.  The best mediated outcomes consistently flow from thorough preparation.  Yet particularly with court-mandated and even private early voluntary efforts, counsel may prepare less rather than more, thinking that a settlement isn’t feasible without more formal skirmishing over pleadings, discovery and possible dispositive motions.

Here, keep in mind that almost all mediation preparation is recyclable.  If the case doesn’t settle right away, the same work will likely be needed later.  Fundamentally, extra pre-mediation work and exchanges regularly prompt the needed re-calibration of positions in advance, improving everyone’s prospects for success at the actual mediation.

Lessons from family law mediations: Question as well, whether a marathon session is best, particularly as to early mediation efforts.  Here, civil attorneys can take a cue from family law mediators.  In contrast to civil mediation’s default to late-stage marathon sessions, family law mediations start early in the life a dispute, typically with a series of shorter conversations that build over time to resolution.  No one expects to go from start to finish in a single session, regardless of its length.  Rather, family law mediators know that digesting bad news, exploring options that are rarely ideal, and adjusting to reality is a process.  That process takes time.

Indeed, behavioral scientists have been looking at these underlying concepts for years.  The Swiss-born psychiatrist Elisabeth Kübler-Ross – an early pioneer – studied how people absorb and adapt to catastrophic health news.  Her most famous work is best known for defining five stages most people experience as they confront and process very bad news: denial, anger, bargaining, depression, and acceptance.  Less remembered from her work is the role time plays as people process those phases.  Confronting, absorbing and adjusting to bad news or undesirable alternatives simply takes time.  Conversely, attempting to short-circuit that process in a single marathon mediation is often harder for clients as well as counsel.

Combined with this work is behavioral science research confirming that both clients and counsel consistently overvalue their litigation prospects and underestimate their alternatives to their direct detriment.[2] Wearing rose-colored glasses is expensive, and the longer we wear them, the harder they are to take off.

Family law mediators know this and craft a staged process involving active dialogue between adverse parties, spaced among several shorter sessions, with breaks built in for homework and the time needed to adjust to hard realities.  The rest of us can take a lesson here.

Trying something new isn’t always easy. Human nature prompts us to stick with the same old, same old.  However, by taking inspiration from family law mediations, thoughtfully engaging in direct conversations with opposition counsel, and doing so sooner versus later, everyone’s prospects for success at civil mediations improves greatly.

[1]  In a pending privacy case involving a major technology company, United States Magistrate Judge Jacqueline Scott Corley underscored this point, ordering counsel to “slow down on your emails” and instead use videoconferencing to hash out their discovery disputes.  See https://www.law360.com/california/articles/1264846/judge-tells-facebook-privacy-attys-to-use-zoom-not-email?nl_pk=dc2fad1c-f3df-445d-a1a5-71d96503a0b7&utm_source=newsletter&utm_medium=email&utm_campaign=california

[2]  See, Donna Shestowsky, PhD., The Psychology of Procedural Preference, How Litigants Evaluate Legal Procedures Ex Ante, Iowa Law Review, Vol. 99, pp. 637-710 (2014); Randall Kiser, Beyond Right and Wrong, The Power of Effective Decision-Making for Attorneys and Clients (Springer 2010), pp. 29-48; Mark LeHocky, Rethinking Mediation with Behavioral Science Data, Consumer Attorneys of So. Cal. Advocate Magazine (August 2017)