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Joseph P McMahon Jr., LLC
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My Mediation focus. My mediation focus is finding real alternatives to litigation, rather than processes that merely ‘soften’ litigation. My interest is to facilitate the movement from mediator-centered settlement conferences where bargaining is positional, to party-centered mediations aimed at better understanding and interest-based bargaining. Consequently, my approach to mediation differs substantially from the current and dominant paradigm of commercial mediation. Effective communication is essential, so I work to have the parties communicate directly to the greatest extent possible. Mediation can be improved. To get the real benefits of mediation, we must move beyond the typical "settlement culture" and work to achieve "interest-based" bargaining in settlings where the parties themselves make the settlement decisions. To be interest based, the control over both the process and the decision making must be placed in the parties, not the mediator or the legal counsel for the parties. To achieve this, the mediator and parties need to spend time discussing the parties' interests. Of course, the discussions are challenging, but recognizing the difficulty in settlement negotiations can itself help deal wit the challenges. Mediation can be different. Mediation can be more than a "haggling" approach to exchanging offers & counters. It takes effort, but in a phased approach to resolving the conflict, we can look for solutions as a group. Many cases are settled through a traditional haggling approach that begins with extreme offers/counter offers and ends in the "mid-zone." Yet, many times there were options for settlement that were better for all parties than the settlement signed by them. My goal is to help find those better resolutions. "Two-Table" approach to Mediation. One method to focus parties and counsel on the key decisions to be made is to use a "Two-Table" approach to mediation. This method separates the key issues of the "legal reality" (Table 1) from the "options for resolution" (Table 2.) This approach is more party-centered and is shown in a schematic. Key to the success of this is direct communication among disputants - aimed at increasing understanding and therefore enhancing decision making. Settlement errors. I view part of my task as a mediator as being a coach - coaching the parties against the most common settlement decision making errors. These errors often draw from the difficulty in settlement discussions. See also my article on the Settlement Negotiator's Worst Enemy. Mediation agreement. Mediation is facilitated by a common understanding of what the process will be. In many commercial mediations, it is appropriate to sign an agreement that summarizes the process and confirms that communications are confidential. I start with a form agreement that is then tailored to meet the parties' needs and expectations. Neutral convening. When the parties are in a stage of conflict where it is not clear how to best undertake ADR, a neutral convening is a way to make these important decisions. Mediation in high levels of conflict. The fact that conflict is high does not mean that mediation is not possible. Rather, it may demonstrate the acute need for mediation. However, there needs to be an agreement on how the parties will conduct the mediation - not so as to avoid the conflict, but to ensure better understanding (rather than a repeat of prior ineffective communications). In some situations, a negotiation code of conduct may be appropriate. Mediation with government agencies. Mediation with government agencies requires consideration of several important additional factors to ensure efficiency and avoid undesirable consequences. |