The Closer

A Mediation Newsletter October 2012

Keeping the Focus
by James Rainwater

The mediation process has some basic operational elements: Informality, time flexibility, comfortable environs, private caucusing, and personal input. All of these traits are found in nearly every mediation conference you will attend. They are the fuel that propels the mediation and hopefully contributes to a successful settlement. While these mediation qualities promote open communication, they can also create distraction, confusion, and obfuscation.

From my experience, the open communication of mediation can occasionally have two unwanted effects: Discussion that is harmful to the conference and conversation that is irrelevant and non-productive. Left unchecked, these side-effects have the potential for not only prolonging a conference but also for derailing talks and producing an impasse.

Certainly, we do not want to stifle self-expression of the parties or their counsel. Yet, the mediator must assure that the discussion furthers the possibility of agreement. This is true in either the general session or in private caucus. And it is a fine line for any mediator to walk: When is the dialogue too off-topic?

A mediator wants to foster continuous dialogue among the parties. This, of course, can include some measure of venting by an agitated client. However, as professionals, we also want to ensure that the parties and opposing counsel do not lose focus of the mediation's purpose - to settle the pending matter. Raising issues not included in the case is not likely to lend much benefit and could cause irreparable damage.

A phrase I like to use from my mediation practice is the Zone of Agreement. I define it as that area where a real agreement is possible but not necessarily certain. The certainty of settlement occurs when all parties reach the same conclusion that what they have presented is acceptable not only to their side but also to the other side. By keeping all sides focused on the actual issues of the matter being mediated, the conference will likely be conducted efficiently and settled effectively.

Rainwater Law