September 2013 Newsletter: The Third of Six Principles, Proceeding By Agreement

On a very basic level, mediation in many contexts often unfortunately appears to be independent of any agreement by the parties to mediateIndeed, “mandatory mediation” — where a judge can or even must order parties to go to mediation — is widely accepted.  And given the clogged nature of our court systems, mandatory mediation may be ordered in a wide variety of cases.

While we are certainly suspect of the use of mandatory mediation, we do see a relatively simple way of lessening or “neutralizing” the “mandatory” nature of court ordered mediation and then proceeding with the parties by agreement if they are willing. Namely, the mediator can simply say, as we regularly do when faced with people who feel they have been compelled to come to mediation: “The judge ordered you to be here.  Is there any reason you might each want to stay?  If so, are you willing to say what that might be?  If not, and either or both of you do not want to stay, you are free to go.”  And if they both do want to stay, we can then proceed by agreement.  Of course, this only has meaning if they have the option not to stay and to go back to court (which in some settings the parties unfortunately do not).

Indeed, a value of “mandatory” mediation can be to get the parties in the room with a mediator where neither party (or their lawyers) were willing to suggest mediation for fear that their doing so might suggest that they have a weak case.  If both parties want to give mediation a try, are willing to stay and to say that they are willing to stay, then they may well proceed to mediate — by agreement.

A second mediation anomaly (as we view it) which has developed over time, which for us appears to distort the idea of proceeding by agreement, is the not infrequent wedding of mediation with arbitration.  For example, some “med/arb” mediators” write into their mediation agreements that if the parties feel they have become deadlocked in the mediation and cannot reach agreement, they legally empower the mediator to morph into an arbitrator and make a legally binding resolution to the parties’ conflict.  Commenting in detail about this seeming anomaly is beyond the scope of what we seek to do here. We simply want to emphasize that in the Understanding-Based approach, the core principle of proceeding by agreement is not abandoned by the mediator — even by agreement. The parties are, of course, free to seek mediation in a different way with the mediator having more power, but we would not suggest or agree to mediate in that way.  Proceeding by agreement of all inevitably impacts the way the parties see the mediator and each other, and how the parties and mediator interact – which is exactly what we hope to achieve.

While these all too frequent departures from the centrality of the principle of Proceeding by Agreement in mediation through mandatory mediation and med/arb variations are important, widespread and worthy of focus beyond what we have commented upon briefly here, the central challenge of this core principle of Proceeding by Agreement is much more pervasive.  That challenge runs deeply throughout the mediation — impacting on, building and sustaining the context that supports the mediator and parties working together throughout.

Specifically, at each point throughout the mediation, we seek to Proceed by Agreement, to assure that the parties can together formulate and express their intentions about how to proceed, together.  For example, at the very start of the mediation, when we ask if they are each willing to say something about what brought them here to mediation, we seek their explicit agreement on who will talk first.  In effect, this is a “ground rule” for how we proceed together throughout.  And for the very reason of the importance of this principle, we prefer the term of “ground agreements” rather than “ground rules.”

We might say, “I suggest we proceed by us all hearing a little from each of you about what brought you here if that is OK with both (all) of you. Is it OK to proceed in this way? If so, who might wish to begin.” And if one of the parties (or their lawyers) simply starts, we might say: “it looks like you agree with proceeding in this way and would like to start.  Is that so? And, if so, we would then ask the other(s) whether proceeding in this way makes sense and whether it is fine with whether the first party begins — if that is OK with him/her/them.  If so, we can proceed with that first party.  If it bears further discussion about whether the specific task makes sense and/or who might begin, we would do that until we had agreement about “how” we might best move forward together.  If they disagree, working out the agreement may in fact be time well spent.

This might seem a bit overdone to some. After all, we all make agreements every day with friends, spouses, colleagues about how we proceed in a range of contexts; and our agreements are mostly implicit.  Anything more may seem laborious and, in fact, appear to be questioning our common (implicit) understandings.  But even in these non – conflict laden contexts, some proceeding explicitly about the agreements we make (and agreeing about the disagreements we have) can enhance understanding, trust and mutuality.

And in mediation, the parties are realizing, together with each other and with the mediator, that they can reach agreements together, with the support of (and in agreement with) the mediator, even at a time when agreeing about anything may well have seemed impossible.  By agreeing about “the how,” they are, in effect, getting practice in agreeing and working through their disagreements.  In so doing together, they are forming a base for deciding about the “what” — the issues they seek to work out in mediation.  So, too, when the parties disagree, they  can agree about how they disagree.  They can then agree to work together to address their disagreement together with the mediator, if they are willing to do so. This might all seem a bit overkill, but in our experience working through agreements about the how is building the foundation for Proceeding by Agreement and allowing the parties to work together to make decisions together about the what which can serve them both/all well.

For us it is simply a question of honoring the parties and supporting and reinforcing the idea and reality that “this is your dispute, and I want to work with you in ways that we can all agree can work for all.”  In effect, the parties are getting practice, step by step, in how to move forward together  – by agreements amongst all of us.  If they disagree, it is not time wasted but an essential challenge of finding ways to proceed that work for all.  It provides the opportunity to affirm that the parties can indeed differ, to validate their differing views and to work through their differences.  And it taps their motivation, however hidden and nascent, to do so. Working together in this way with the mediator adhering to the goal of proceeding by agreement, the parties are assuming responsibility (and learning to assume responsibility), together with the mediator, for their mediation.

One by one, we work through these ground agreements.  Many mediators simply have a list of ground rules which they may well simply hand out to the parties.  And our understanding-based approach to proceeding by agreement may well be met with skepticism. But for us it is a core principle we seek to honor.  Indeed, proceeding by agreement is, ironically perhaps, the most basic of ground rules.  Shared ground agreements, consciously made together, can support the motivation and shared understanding that can give the process its shared power.  For some in conflict, if not for many, mediation might seem the least bad alternative.  In proceeding by agreement, we seek to tap the motivation, willingness understanding and perhaps the slowly emerging commitment that can give the process its shared power.

While we have focused here primarily on the contracting stage at the start of the mediation, proceeding by agreement is a principle that is overriding throughout the mediation.  At each stage, at each point, with each task from start to finish, we seek to proceed by agreement about how we are going to proceed. In doing so, we seek to tap the motivation, willingness understanding and the perhaps slowly emerging commitment that can give the process its shared power.  If either party chooses not to continue in mediation, that party is certainly free to do so. We would likely ask if they are willing to share with the other their reasons if the other party is willing to hear the reason(s); but ultimately either party is free to leave the mediation.  Again, to  proceed in the mediation, it will be by agreement.

And, of course, in reaching substantive agreements and a final resolution, we seek to Proceed by Agreement to reach a substantive agreement that honors all the parties and the mediator.  With this attention on proceeding by agreement at each step, it is highly likely that any substantive agreement the parties reach will be one that the mediator can readily respect.  But in the unlikely event that the parties appear to be reaching a substantive agreement that the mediator feels he or she cannot honor, it would in our view fall on us to share our concerns, offer suggestions and find a way together to proceed by agreement of all.