Richard L. Gilbert
Judge of the Superior Court (Retired)

MEDIATION OF "PUBLIC INTEREST DISPUTES"

Thoughts on a Process

Richard L. Gilbert

First, a definition of "public interest dispute". By that phrase, I include all varieties of complex, multi-party disputes involving some combination of private parties, representative and other "interest" groups and government agencies.

I begin with the proposition, an assumption, really, that facilitated mediation is a valuable and under-utilized resource that can be effective and expeditious in constructively resolving complex public policy problems and disputes. The topic of whether mediation can be of value is a separate discussion, but one worth having some time. I take the proposition for granted based on my own experiences, anecdotal evidence from a variety of sources and from the fact that the classic resolution of a public interest dispute - the identification, understanding and, ultimately, compromise, of a potentially competing legitimate interest in the public or public/private spheres - fits the classic definition of interest based mediation very closely. These thoughts will describe a process of context in which such mediation ought to thrive. The goal is to suggest the basics, with particular emphasis on where the process followed in public interest disputes ought to vary from mediation of "typical" private disputes, particularly those involving litigation.

"Mediation" is commonly understood as the use of a third-party, the "neutral" mediator, to facilitate resolution of a dispute. In the "traditional" model, the mediator acts only as an "honest broker". That is, the mediator has no stake in the outcome, but only assists the parties in reaching their own agreement. This is typically done by:

 

1) guiding the parties to better understand their own and their opponent's goals, 2) facilitating communication between the opponents, 3) helping identify areas of agreement, 4) helping the parties better define areas of disagreement and, 5) helping the parties uncover areas where compromise and possible complete or partial settlement of the dispute can be achieved. It is often said that, while the mediator provides the "process" for the parties to effectively resolve the controversy themselves, the best mediation is one where the parties are the most in control of the mediation process itself. Naturally, the mediator makes no decisions and forces no agreements. Each party remains free to agree, or not, based on their assessment of their best interests.

In reality, there are infinite varieties of "mediation". It all depends on the parties, the nature of the dispute, whether there is litigation pending and a host of other less tangible factors including the personalities of the players, the particular skills (and weaknesses) of the mediator and, in public interest matters, over-arching political and policy considerations. Perhaps most important is the reality that every mediation is a fluid and dynamic process that may look like one "model" at the beginning, but may evolve into others or, as happens more than you might think, into its "own breed". For this reason, an important role (and an essential skill) of the mediator is to constantly assess what's happened, what's happening and what ought to happen next.

Probably the best way to describe mediation in the public interest dispute context is to outline the generalities of a mediation process that suggests itself as useful in such cases.

1. Pre-mediation assessment. This is a step that can take place before a final agreement to mediate is reached or as a first step of an agreed mediation. The process involves a meeting of the concerned parties with the mediator, in a general session or in separate meetings, to do some or all of the following: 1) identify the parties needed for an effective mediation and how they are to be represented. It is often the case in public interest disputes that there are constituencies that "technically" don't need to participate, but whose participation is practically or politically necessary or desirable. Also, the representatives who attend must have the fullest possible authority to approve a settlement. In public interest disputes where governing boards must give final approval in defined ways after the fact, it should be required that the board be fully briefed in advance on the issues and the mediation process, including the full range of possible outcomes, and formally authorize the attendance of the chief executive officer. It is also often very helpful to have 2 members of the board attend as part of the negotiating team. This promotes confidence in the process among the other parties and develops the buy-in often helpful to obtain final authority for a settlement; 2) determine the information to be exchanged between the parties and with the mediator in preparation for the mediation; 3) identify preliminary goals for the mediation; 4) gather the parties' ideas concerning the mediation process itself; 5) discuss the "rules" for the mediation, including whether there will be a formal mediation agreement and, if so, what it ought to say. (Such agreements would cover things like confidentiality of the process, responsibiity for the mediator's fees and other important issues.), and; 6) discuss the date(s), times and locations of the mediation meetings.

2. Confirmation of the Process and Participants. After the initial assessment, the mediator will confirm the participants, the process and the nature of the agrement to mediate. This may require follow-up meetings with the same parties or others whose participation is determined to be needed. If there is to be a formal agreement, which I recommend, the agreement is circulated for signature.

3. The Mediation.

a. Opening Session. The mediation will typically convene with all parties and the mediator assembled together. The mediator should begin the meeting by introducing the participants and outlining the process, the role of the mediator and the role of the parties and their representatives. The introduction should focus all participants on the common goal and begin the process of their involvement. In complex, multi-party cases where emotions are running high, some mediators begin with "exercises" designed to open the minds of the participants to other viewpoints, encourage participation in the group process and begin to reduce the tension level. The introduction also serves to give the parties a "flavor" of the mediator's style and approach. In public interest disputes, the mediator should be familiar enough with the issues and the positions of the parties such that a tailored and focused process can be suggested at the outset.

Based upon the pre-mediation assessment, the mediator may want a representative of each party to make brief "opening statements". The decision whether to permit an opening statement and the giving of an effective, non-confrontational opening are true art forms. Allowing opening statements lets the sides feel they have "had their say", sometimes very important to overcoming the real barriers to settlement. On the other hand, an in-artful or confrontational, uncompromising speech can end the process before it begins. A successful mediation opening statement makes the point that there is merit in the views of the others and that the speaker's team is receptive to listening, learning and compromise. If the mediator feels these goals cannot all be accomplished, it is probably better to skip such party presentations in favor of moving quickly to individual caucuses, described below, or to a more structured opening exercise by the mediator.

In lieu of or in addition to party opening statements, the mediator may want to lead a preliminary discussion with all present directed at clearly identifying the issues, the positions of the parties and the goals of the mediation. If carefully done, such work will begin the necessary process of educating the parties as to their own and others' true interests, will serve as a guide for the mediation process to come and can serve as a jointly agreed measure of progress through the mediation.

b. First caucuses After the opening session, the mediator will meet with each party separately. These meetings are typically called "caucuses". It is an iron-clad rule that the discussions between the mediator and the parties in these separate caucuses are absolutely confidential and the mediator must not disclose information and strategies or positions learned in such sessions without permission of the parties. Where more than one party is "aligned" in the dispute, this first meeting may be between all the parties on one side. In almost every case, however, there should be at least one early separate meeting between the mediator and each individual party.

The first caucus meeting should be for the mediator to continue to learn the parties' mediation goals and the basis for each party's position. The mediator needs to learn both what the spoken and unspoken goals are and what the real and perceived barriers to compromise and settlement are. In public interest disputes, it is almost always essential that the mediator foster each party's understanding of the positions and legitimate role and motivations of the other parties to the controversy. This is typically an essential step in the search for the common ground necessary to resolve issues based in "policy" or "political" considerations. First meetings rarely involve discussions of "bottom lines". In fact, such discussions should be avoided as they tend to polarize and harden positions at too early a stage of the process. Instead, the mediator's first task in the caucus should be to lead the parties towards a clearer and more precise articulation of the specific interests that need to be served in a satisfactory outcome, leaving the precise ways such goals can be achieved or, sometimes, compromised, to later discussion. This is a task the mediator can begin while meeting with the parties and which the mediator can leave with the group as an "assignment" to be completed while the mediator goes from one caucus to another. There can be a lot of frustrating "dead time" in mediation as the mediator "makes the rounds". Such an "assignment" is substanatively helpful and serves to keep the parties on task and involved.

c. Follow-up caucuses After the "first round" of caucuses, the mediator will have some idea-sometimes clear and sometimes not-of the nature and magnitude of the task ahead. This is a time for the mediator to reflect on the process, re-assess the intended agenda, and, sometimes, confer with the parties on their views on what should be done next.

After this re-assessment, the mediator will usually begin a new round of caucuses, not necessarily in the same order. The process of education always continues. In addition, the mediator will start to focus the parties more specifically on options and paths to settlement. Sometimes, the entire group may be re-assembled for a report and discussion, particularly where commn ground or new divisions have been identified.

The process of caucusing becomes the "soul" of the process. It is in the caucus sessions that the mediator draws out the parties to consider the views of others, tests their assumptions, and suggests alternatives for consideration by the parties that the mediator has gleaned in the process of meetings with the parties.

Sometimes, developments in the process may suggest that the mediator abandon the strict role of the honest broker and offer opinions on the weaknesses or strengths of the parties' positions or suggest particular settlement approaches much like an "Early Neutral Evaluation". This is dangerous business. Timing and approach are critical. It is my experience, however, that in a litigation setting, for example, part of the reason the parties choose a particular mediator is to have the opportunity to hear the mediator's observations about the case based on the mediator's relevant legal, judicial and practical experience. In public interest disputes, even those not in litigation, the observations of someone savvy to the political scene, may help the parties construct a solution or temper certain views. Sensitivity and flexibility must be foremost in deciding when, and if, to offer an opinion. There are, generally, only two occasions when this should be contemplated. When the parties are near agreement, but are hardening their stances, a well-reasoned practical "nudge" can bridge a small gap. The other circumstance is at the other extreme. When the parties are very far apart or polarized and constructive dialog and rational compromise are not happening, the "nudge" may get a more realistic process going. The mediator will likely get only one opportunity to encourage settlement in this fashion. If the technique fails, confidence in the mediator as an honest broker and faith in the mediation process as fair and constructive may be lost.

d. Follow-up Sessions In public interest disputes, having periodic "check-up" meetings with all parties can be helpful. It's a judgment call. Other delicate questions are when to quit, when to take a break, short or long, and when to press on into the "wee hours". Breaking and re-scheduling is sometimes the best thing to do. During any extended recess, the mediator should continue the communication process by phone or in-person meetings. It's all part of the process of continually assessing where the rubs and opportunities are.

Throughout, the mediator will need to consider whether to encourage direct discussions between the parties. Of course, this can't be prevented, but the mediator must take responsibility for the process and work with the parties to be sure that whatever happens moves the discussion forward, not backward.

When all of this is done, it is hoped that there will be an agreement to memorialize. That doesn't always happen. Moreover, sometimes only part of a dispute can be resolved or a dispute can be resolved between some but not all of the parties. All are acceptable outcomes, and all are possibilities to be kept in mind. Where the whole dispute cannot be resolved, consideration should be given to ways to better define or narrow the issues left to be determined and to finding a more streamlined or constructive way to resolve the remaining disputes.

(c) Copyright, 1996, 2003, 2004, 2015

Richard L. Gilbert.