Using Written Word to Avoid Failure in Mediations
When I was a transactional attorney, I cannot recall how many times I heard a client say they had reached a deal with a counterpart only to later learn that the deal wasn’t as firm as they thought. This most often arose not from bad faith but from the intent of one party being different from what was perceived cross-culturally by the other party. From that, I learned how to help clients make sure such misunderstandings didn’t occur and those tactics hold true for avoiding misunderstandings in mediation too. One key tactic is to recap in writing any key points to a mediation as you proceed.
Why?
“Why is that?” you might ask. First, sometimes a party in another culture will use a gesture (such as nodding) or phrase (such as “yes”) that suggests the party is agreeing when in fact it just means the party is listening. Second, many people have stronger skills in writing than they do in listening or speaking in a non-native language. Third, many parties have to report to their higher-ups and it is useful to have something in writing to make sure they’re reporting the discussion accurately. Fourth, it can’t hurt. That is to say, I have never heard any party object to an effort by the other party to make sure they are understanding what is being proposed or conveyed. The time is well worth the effort. Positions are clarified and the parties do not waste time pursuing inconsistent terms.
What?
“What should you recap?” you might ask. First, be sure you understand what the key issues are in a dispute from the perspective of the other party. If, in an opening statement, they have shared some insight on those points, it may be useful to recap those points in writing. If a party has made a proposal and you’re considering it, you should recap the proposal to make sure you understand it. If, on the other hand, the other party has explained that it objects to your proposed settlement, you may recap the reasons the other party gave, so you can then address those objections one by one. Finally, once an agreement is reached, recapping the key terms before anyone drafts a settlement agreement is useful. Doing so will often help trigger additional logistical questions about settlement terms that can be hashed out before anyone puts pen to paper to draft a settlement agreement itself.
When?
“When would a recap be useful?” you might ask. As the above discussion about written recaps suggests, written recaps can be useful at the early stages of a mediation or even before a mediation if pre-mediation briefs are shared with the mediator and the mediator is seeking to understand a particular client’s real objectives. Recaps can be helpful to keep negotiations on track at key points during a mediation. They can be useful to make sure the parties have agreed on a settlement when they think they have a deal. In sum, consider the utility of a recap at regular intervals if the parties are from different cultures and definitely to verify the terms of any settlement agreement before it is fully drafted.
How?
“How detailed does the recap need to be?” you might ask. The less wordy a written recap is, the better, when the person reviewing the recap is functioning in a non-native language. Complexity, detail and length vary, however, depending on the settlement terms. The key is to present ideas in plain language, with short, simple sentences, even if that makes the document longer. Outlines or bullet points of terms are advised, in contrast to long narratives. It is best to avoid more than one settlement term per sentence.
Who?
Who can use this tool? As a mediator, I have used periodic written recaps to make sure all the parties are tracking one another. I have also seen both parties or their respective legal counsel use written recaps to make sure there’s no disagreement OR to clarify where disagreement lies. Anyone who is concerned that the parties might miss a settlement opportunity due to miscommunications, should use this tool to increase the likelihood of a successful mediation.
Give it a try; I think you’ll like it!
Help Your Mediator Help You - Preparing for Mediation
Your mediator is here to help you! Still, your mediator needs your help too. It is a collaborative, not an adversarial relationship. That’s one advantage of mediation over trial. All sides want what’s best for their clients, and argue for that, but in a mediation the mediator is the neutral “in between” who needs to have an ability to listen and accept various points of view and a grasp of the parties’ motivations, personalities, and wants—as opposed to needs, in addition to an understanding of the facts of the case.
So how can you help your mediator help you?
Promptly send back any forms such as your mediation agreement, signed by all parties required and their attorneys - The mediator will not begin any work on your case until having received a properly signed agreement that includes an agreement to the mediator’s fees and an agreement to abide by the rules of mediation, as required by statute, court rules and/or treaties.
Be available for any pre-mediation calls - These are important calls between just the attorney(s), client(s), and the mediator. They are important for both the mediator and the parties as an informal get-together. They give the client a chance to meet and get to know the mediator, making the mediation itself more comfortable. These calls give the clients and attorneys a chance to ask questions about the process, test their equipment, become more confident in the confidentiality of the process (whether a virtual platform or otherwise), when invited to talk with the mediator or attorney in a private room. They are also very important for the mediator to get to know the attorneys and the clients. The mediator has an opportunity to consider the clients’ feelings about the case and to see if they are inclined to negotiation, or resolved to go to trial “no matter what” — whether they are passive, frightened, tending to explode, resolved, or otherwise.
Promptly answer and return the mediators pre-mediation requests for information - It is very helpful to the mediator to obtain answers to questions such as:
What is the theory of your case?”
“Have you discussed settlement with the other side?”
“What is the last demand or offer made for settlement and by whom?”
The answers to these questions will help the mediator know where to start the mediation and save time.
Send the mediator copies of the complaint, answer, any prior important relative motions made to the court and the court rulings - These items will help the mediator to know which issues are in dispute and which issues have already been resolved, allowing everyone to move forward without rehashing anything, risking the opening of old woods and covering old ground, thus making the actual mediation go more smoothly.
Be prepared and help the mediator prepare by sending copies of the most important cases, statutes, treaties or rules, either as attachments or by use of links with your mediation statement explaining your position - Sending this information ahead of time to the mediator allows time for review and preparation and clarifying questions, if necessary.
By helping your mediator to properly and adequately prepare for your mediation, as well as get to know the attorneys and clients informally, your mediator can better and more efficiently help you successfully get your case settled in a timely, cost effective, and less adversarial manner.
Starting Off on the Right Foot
It is surprisingly easy to jeopardize a successful mediation before the mediation even starts. Demanding a joint session can be risky. An attorney may want to appear as an advocate for his or her client, to show that the client is being zealously represented. That may help the lawyer’s relationship with the client, but it may jettison any chance of success at resolution of the dispute.
That’s especially true in cross-border mediations. Cultural cues and understandings are a bit more subtle but just as key in making sure all parties maintain a desire to reach a resolution. Here are some tips to making sure you don’t ruin the mediation before it has even started:
If a mediation is in person and involves people from another culture, find out ahead of time what is an appropriate greeting. For example, will shaking hands – something we take for granted in the U.S. – be the acceptable greeting? In some cultures the greeting is in the form of a bow. In other cultures shaking hands with someone of the opposite sex is forbidden. Besides creating an awkward moment, doing the wrong thing can be offensive.
Find out about any important business customs. In Asia, for example, the manner in which you present a business card may be just as important as having a card to present. And it is not just providing the card with two hands, as many have seen in films. An important aspect of this greeting is taking the time to look at the card and to acknowledge the information on the card. Likewise, seating a person in the appropriate location at a table may be an important sign of respect. If you’re the one arranging for the space, make sure you discuss seating ahead of the mediation.
Make sure you know of any physical needs of participants. Offering some self service coffee, tea and water may be customary in the United States, but in other places more may be expected. Attendees may have special dietary or medical needs, as well. Planning for these in advance of mediation shows consideration and will allow everyone to be comfortable, increasing the likelihood of success.
Set the tone with your appearance even virtually. In the new day of remote mediations, how you appear “on camera” sets a tone, just as it would in person. Certainly business attire is appropriate; but consider your background, as well. If you can blur the background or make sure it is a professional setting – not your kitchen – you show that you take this process seriously, that you and your clients are serious about resolving the dispute. If the mediation involves parties from another country with a very formal court system, this will be vital.
Help your client understand the opportunity that mediation presents and how it fits in the process of resolving the client’s dispute. If your client is from another country, make sure you explain the role of the mediator and the Judge and the difference between them. There are many countries where mediation is not offered as a form of dispute resolution, or mediation is limited to consumer or family issues. Mediation can be different in format and function. Helping your client understand what to expect will help your client feel confident, in control and focused on resolving the dispute instead of spending energy trying to figure out what’s happening.
Discuss your clients’ goals, concerns and expectations. Planning ahead of time and asking questions will best serve your clients and at least keep the door open to a possible amicable resolution.
Use of Interpreters at Mediations
Parties come to a mediation with a history of misunderstandings in most cases. Misunderstandings are often the causes of the dispute. The last thing parties and their counsel want at a mediation is to further any misunderstandings or cause new ones. When the parties speak different languages, that risk increases.
Even if parties/counsel believe that they are fluent in another language, it is always wise to have an interpreter if the mediation is being conducted in another language. The parties and counsel should be concentrating on mediating, not on interpreting. The interpreter should be an official interpreter rather than a friend or colleague who knows the language. Terms used in legal disputes are often technical and/or legal; not everyone knows such terminology. Moreover, interpreting requires intense concentration and trained interpreters know when they need to take breaks and how to manage the process to sustain their performance throughout the mediation. A interpreter friend may also have difficulty keeping to the interpreter role – becoming caught up in the process of the mediation and forget to interpret.
Having a neutral interpreter also mitigates an interpreter putting his/her own spin on what is being communicated. A neutral interpreter has no interest in the outcome of the mediation and therefore is less likely, even inadvertently, to alter interpreted statements to favor one side or the other.
This also allows the party or lawyer who speaks both languages to more easily identify mistranslations. The official interpreter will not be familiar with the contours of the dispute, may not understand something that others do from context, or may not be familiar with legal or technical terms. Parties/counsel can speak up and try to explain the particulars to the interpreter. There is nothing wrong with doing that. Mediations are not “recorded” in any way – there is no court reporter or possibility that what is discussed in the mediation will become part of any record. Although getting the words right is important to facilitate the mediation, perfection is not a requirement.
If parties are going to use an interpreter, here are some tips:
Discuss the plan with the mediator and other parties. Typically in mediations interpreting would be serial rather than simultaneous. That means more time is needed to allow for repetition of any comments made to and from the person who requires the interpreter. Using an interpreter may also require added breaks, for the interpreter to maintain high quality interpretation.
Plan time to allow the interpreter to identify the interpreter’s needs. Pause to allow interpreting every few sentences and avoid interrupting one another so that one person’s comment can be translated before another thought from another person is raised.
Brief the interpreter on the background of the dispute and make sure the interpreter understands the confidential nature of the mediation. It may be appropriate to have the interpreter sign a confidentiality agreement, as well, if all potentially applicable law does not require the interpreter to keep the mediation confidential.
Context Matters – How to Avoid Missteps in Cross-Border Mediation
Sara Sandford and Lisa Savitt recently shared some of their tips for avoiding missteps in cross border mediation at the Union des Avocats International/International Association of Lawyers 30th World Forum of Mediation Centers conference held in Malaga, Spain. The interactive program focused on understanding the impact of cultural differences and legal systems on mediations. Lisa and Sara shared tips, including:
Working with clients to understand their and their attorneys’ expectations regarding the mediation style and format.
Preparing for the mediation by studying cultural differences among the countries of origin of the participants, which could impact:
Goals – solution/relationship
Attitudes – win/win or win/lose
Personal Styles – informal/formal
Communication Style – direct/indirect
Time Sensitivity – precise/casual
Trust – how it’s demonstrated
Emotionalism – high/low
Form of Agreement – specific/general
Agreement Process – bottom up/top down
Team Organization – one leader/consensus
Risk Taking – high/low
Format of Mediation – formal/informal
Developing strategies for how to help rebuild trust or confidence, when someone unwittingly disrupts the flow of mediation by a misstep.
In addition to knowing the issues and parties’ stated objectives, mediators have to understand the basic legal regimes of the matter being mediated. They also need to understand and plan for the conscious and unconscious expectations and attitudes brought to the table – particularly when there are substantial differences in how parties might approach dispute resolution and decision-making. Lisa and Sara explained how essential it is for mediators to help the parties anticipate these kinds of challenges in advance of a mediation so missteps don’t derail a mediation that could otherwise be successful.