By Katherine Miller
Recently I went to a panel discussion of the merits and challenges of the “med-arb model” and the possibility of applying it to family law matters in New York State. The panel was comprised of very distinguished jurists and academics and the conversation was at a high level of sophistication. The panel was inconsistent in their support of the med-arb model but it was unanimous in the use of Caucusing.
Toward the end of the evening, I raised my hand and asked the panel to consider the internal experience of the mediator. I posited to them that for me—and for them—the shift in the mediator’s internal experience to NOT being responsible for the decision of who was right and who was wrong or who won and who lost, freed me to be more available to the parties and therefore made me more effective. Before I made this statement, I outed myself as one of those non-caucusers that some of them had earlier referenced (perhaps with some slight disdain). I engaged with the panel in a lively discussion about the impact of the responsibility for decision making on the mediator’s effectiveness as a neutral. The discussion continued until the program’s end and was summarized nicely by the Hon. Sondra Miller as perhaps centering on the trust the parties are able to place in the mediator and the impact that trust has on the mediation.
After the conclusion of the presentation, I went up to shake hands with the presenters. The Hon. Stephen Crane asked me about keeping the parties together. In particular he was interested in hearing about what happens when the parties get to the part of the discussion where the conflict lies. We talked about allowing the conflict to exist so that the parties have an opportunity to work through it to the point of realizing new opportunities. He responded by talking to me about a technique he uses called the “extended joint session” where he keeps the parties together for an extended period of time and in our conversation he seemed to open to the possibility that the extended joint session might have more possibility than he previously thought.
As I broke away from that conversation, many other people came up to me to talk about keeping people together: what do I do when it gets hot? Why do I do it? How do I manage myself when tensions run high? The answers to these questions vary but what’s really interesting is how fascinated experienced ADR professionals are with the idea of keeping parties in conflict together, but how rarely they actually do it.
Judge Crane asked me “How I got started keeping people together.” I wonder: Why keep them apart?