ADR CORNER
ADR CORNER
What Scheduling May( Or May Not) Reveal About Mediation Parties
NELSON EDWARD TIMKEN
For mediators who schedule their own mediations, first contact with participants begins with the scheduling process. The scheduling phase of a mediation, while seemingly simple, may offer tantalizing glimpses into the personalities and potential approaches of the parties involved. Scheduling mediation isn ' t just about finding a convenient date and time. It ' s often a subtle dance, a prelude to the main event, where parties reveal glimpses of their personalities, priorities, and potential approaches. While not definitive, these early interactions can offer valuable insights for the mediator and even the opposing side. However, it ' s crucial to remember that these initial impressions can be profoundly misleading, like a mirage in the desert. So, keep your mind open, and always maintain objectivity.
A party who responds promptly to scheduling inquiries and provides necessary information efficiently often indicates a desire to resolve the matter expeditiously. Conversely, slow or hesitant responses might suggest resistance, internal disagreements, or a strategy of delay. It could also indicate a lack of organization or a heavy workload, but it ' s a point to note. Often, a difficult client or desire to delay resolution might be indicated.
Parties who demonstrate flexibility in scheduling and are open to various date and time options often show a cooperative spirit. This can bode well for the mediation process itself. Insistence on specific dates or times, without considering alternatives, can suggest an inflexible approach. Attorneys who indicate that they are” tied up in court every morning” may appear to prioritize litigation over the disputeresolution alternative.
Parties who communicate clearly and directly, providing necessary information without ambiguity, are likely to approach mediation with a similar level of transparency. Ambiguous or unclear communication can foreshadow difficulties in the mediation itself. The tone of emails or phone calls can be quite revealing. A polite and respectful tone often indicates a willingness to engage constructively. A confrontational or dismissive tone can signal potential challenges.
The number of involved parties and their representatives can indicate the complexity of the case. More people involved can mean more complex negotiations. It can also indicate that the parties are taking the process seriously. The presence of a firm partner at the scheduled mediation or pre-mediation conference generally indicates a serious effort at resolution. An insistence on an in-person mediation may indicate an attempt to repair interpersonal relationships to repair an ongoing business relationship. It can also indicate a desire to deliver a personal attack face to face, so the mediator must remain vigilant.
Demands for extensive pre-mediation document exchange or information sharing can signal a desire for thorough preparation and transparency. It may also indicate a desire to misuse the process to obtain information properly obtained in discovery.
A party ' s insistence on an expedited schedule can signal a strong desire to resolve the matter quickly. Requests for extended delays can indicate a strategic attempt to postpone resolution.
Beware of first impressions. Parties may modify their behavior during the mediation itself. The mediator ' s skill and experience are essential in fostering a collaborative environment.
An attorney or party unfamiliar with mediation may seem to be uncooperative because he or she is experiencing
significant stress and anxiety. Some parties may adopt a certain persona during scheduling. A seemingly unyielding stance could be a tactic to gain leverage before the actual mediation. Conversely, a party might appear overly accommodating to lull the opposing side into a false sense of security.
Email communication is prone to misinterpretation. A brief or direct message can be perceived as rude or dismissive, when it might simply reflect a busy schedule or a preference for concise communication. Cultural differences in communication styles can also lead to misunderstandings. So too an attorney may wish to project a very specific image of their client to the opposing counsel. A party or counsel ' s availability and responsiveness can be affected by unforeseen circumstances, such as illness, travel, or work commitments.
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PBCBA BAR BULLETIN 10