April 2020
By: Jeffrey H. Marcus 

This article discusses important questions that every mediator should consider asking counsel, the parties, and themselves, before and during a mediation. Why should a mediator ask himself or herself questions? I think that mediators ought to possess an emotional intelligence quotient. The following questions are meant to be a suggestion, not an exhaustive list.

I. Why Asking Questions is Important

A. Asking Questions Enables Us to Satisfy Our Professional Obligations

The Florida Supreme Court is empowered by Florida Statutes §44.106(1)(2019) to establish minimum standards for professional conduct for mediators certified under Chapter 44. Various Florida Supreme Court Rules that impose standards of conduct may be met only by asking questions. Such Rules include:

Rule 10.220     Mediator’s Role

Rule 10.300     Mediator’s Responsibility to the Parties

Rule 10.320     Nonparticipating Parties.

Rule 10.330     Impartiality

Rule 10.350     Demeanor

Rule 10.630     Professional Competence

It is beyond the scope of this article to discuss these Rules in detail. A few examples will illustrate the point that mediators must ask questions. Rule 10.220 requires mediators to “reduce obstacles to communication, assist in the identification of issues and exploration of alternatives, and facilitate voluntary agreements”. Rule 10.300 provides that a mediator’s responsibility to the parties includes honoring the right to self-determination, acting with impartiality, avoiding coercion, improper influence, and conflicts of interest, and exhibiting appropriate demeanor. Rule 10.330 mandates mediator impartiality and defines impartiality as “freedom from favoritism or bias”.

B. Asking Questions Allows Us to Practice Mindfulness

Mindfulness has been defined as the practice of paying purposeful attention to the

present moment without judgment. The American Bar Association (ABA) has endorsed mindfulness for lawyers and has established the ABA National Task Force on Lawyer Well-Being. Mindfulness is also a useful practice for mediators.

Mediators must be aware of and be prepared to manage the emotional

aspects of the disputes before them. Asking questions is an effective way to gauge the emotional dimensions of the dispute. Practicing mindfulness may also help mediators really listen to the parties and their counsel, remain impartial, and exhibit required professionalism.

II. Questions a Mediator Ought to Ask Counsel Prior to Mediation

Some of the questions that a mediator ought to consider asking counsel for the parties before a mediation include the following.

What are the main issues in the dispute?

Do you have any questions about my role or the mediation process?

Is there a business or other relationship between the parties that your client wants to preserve?

What is the status of the dispute?

Is counsel aware of any emotional or trigger issues on either side?

Are there any special precautions necessary to ensure a safe mediation environment?

III Questions a Mediator Ought to Ask Himself or Herself Prior to Mediation

Some of the questions that a mediator ought to ask oneself before a mediation include the

following.

After reading the materials provided by and speaking with counsel for the parties, am I adequately informed and still neutral about the issues?

Am I confident about my role and my ability to effectively and properly mediate this dispute?

IV. Questions a Mediator Ought to Ask Counsel During the Mediation

Some of the questions that a mediator ought to ask counsel for the parties during the mediation include the following.

What are your/your client’s goals for this mediation?

What would help you achieve your goals?

What are the obstacles to resolving the dispute?

What do you need to learn from the other party(ies)?

Can you think of any creative ways to resolve this dispute?

V. Questions a Mediator Ought to Ask the Parties During the Mediation

What can I do to help you feel this mediation is a safe environment?

Do you have any questions about my role or the mediation process?

Are you authorized to settle this dispute? If not, then who is?

VI. Questions a Mediator Ought to Ask Him or Herself During the Mediation

Whether I have listened carefully to the parties and their counsel so that I can facilitate their negotiations?

Whether I have learned anything during the mediation that has challenged my professional competence?

Whether I have maintained impartiality?

Whether I’ve used all of the tools available to facilitate the parties’ self-determination of a negotiated settlement?

VII. Conclusions

The questions we ask as mediators are of the utmost importance to conducting optimal mediations. We should ask questions that are designed to provide a safe environment for the parties to communicate, be creative in resolving disputed issues, and ultimately to settle their disputes on terms acceptable to them. We also need to be mindful of how we respond to the stimuli of the parties, their counsel, and the dynamic information exchange of the negotiations both before and during the mediation.

For additional ADR tips and resources, please go to the ADR Committee page of the newly updated Palm Beach County Bar Association website.

Jeffrey H. Marcus is in solo practice in Wellington. His practice focuses on business law, employment law, equine law, and mediation. He is a Florida Supreme Court Civil Circuit Certified Mediator. He is admitted in Florida, New York and Pennsylvania. Jeff may be contacted at [email protected]. His website is at https://marcuslawoffice.com.

March 2020 
By: Richard Lord

I write from the perspective of having been a civil trial mediator for the past 20 years. Before the mediation, there are several things, beyond explaining the process to your client and preparing your summaries and presentation, that you, as an attorney, can do to increase the odds of success at the mediation and of having a satisfied, if not happy, client. Your client needs to be involved in the identification of “the good, the bad, and the ugly” of their case so that a realistic understanding of your limitations in working on their behalf can be developed before the heat of the moment of mediation arrives.  It will allow them to listen to and work with you through the uncertainties and likely disappointment and frustration that are often a part of successful mediations. Part of this advance work should include the running of various scenarios and options along with the rough probabilities so your client can understand in advance why it may be wise to consider an outcome far different than what they may feel is their entitlement or you may view as their best case. Your mediator may well ask you your thoughts on the probabilities and it may be better for your client to have already heard it and to have already gone through an analysis of the law, facts of the case, and factors that may lend credibility or support one way or the other. If the first time they hear about it is at the mediation, there is a greater risk that they will not like the analysis when they must be able to make decisions based upon it.  And telling them before the mediation means they will be hearing it from you and maybe the mediator for the second or third time, thus increasing the likelihood their decision-making will be consistent with a rational process as opposed to unreasonable expectations, emotion or other motivator.

It is also important that your client truly understand the multiple hats the litigator wears when it comes to mediation.  You are both their advocate and their counselor, and those two hats are starkly different. Too many mediations see clients emboldened by the opening statement of their able advocate. You should tell your client that you have two hats, one of the advocate when you are speaking for them to the other side; and the counselor hat when it’s just you, them and perhaps the mediator in the room.  Tell them about those two hats before the mediation so they are mentally prepared for your gymnastics. Being clear about that helps you avoid having your client gain confidence from your opening or rebuttal comments to the mediator in caucus. Explain to them that your advocacy is designed to maximize their outcome and that your counseling is geared toward their being smart and realistic. Remind them that they should not take talk focused on uncertainty and risks in caucus as being inconsistent with your advocacy or as an indication you are changing your mind. Doing so will help them be a reasonable and informed business partner with you in the mediation and, when you reach settlement, they won’t think you took them somewhere out of weakness.

What should you do when the case does not settle? What happens next is the typical focus. Some responses are familiar such as keeping an open mind and encouraging your client to do so; considering who now needs to be deposed, what new manner of proposal should be made, what evidence requested, motions filed or experts retained.  Your thoughts typically focus on what needs to happen to get it settled or what needs to be done to get ready for trial or other adjudication. But there is something I suggest you do that will help you in future mediations for this client and if not, certainly for others. Too few litigators do it. I suggest that after each mediation that does not result in settlement you try to come up with at least three possible reasons for the impasse or adjournment.  That list should influence your preparation for future mediations. Perhaps not each thing you identify was a cause of what happened, and adjusting accordingly won’t guarantee that your next mediation results in settlement, but you will be building greater awareness of factors you can address in advance of and during each mediation going forward. By actively deconstructing and learning about the process each time, you will become a more effective advocate for and counselor to future clients in the mediation process. To learn even more, we hope you’ll attend the Mediation Committee’s presentation “You Can Always Be a Better Negotiator” at the Palm Beach County Bar Association’s Bench Bar Conference on March 20, 2020.  And for additional tips and resources please visit the ADR committee page on the Palm Beach County Bar Association’s newly updated website.

Richard has been a mediator with Upchurch, Watson, White & Max since 1999. Until 2016 he lived in Orlando and worked predominantly in Central Florida. Now, from the firm’s office in West Palm Beach, he mediates throughout South Florida as well. Richard is on the Council of the American Bar Association’s Section of Dispute Resolution, is a Fellow of the American College of Civil Trial Mediators (ACCTM) and is listed by the National Association of Distinguished Neutrals. You can learn more about him at https://www.uww-adr.com/biography/richard-lord and he can be reached through his assistant, Norma Abreu, at (561) 533-7553.

February 2020
By: Adam Myron

I am going to ask you to do something counterintuitive: when you get to the end of this paragraph, stop reading and close your eyes.  Slowly take three deep breaths, inhaling fully and exhaling fully.  Then resume a normal breathing pattern and with each breath, count upward until you reach the number 10.  If you start thinking of work, or what you’re going to have for lunch, or something else, that’s fine; notice the thought for what it is, but try to return your focus to your breath and resume counting.  Once you have completed this exercise, return to this article.  Are you ready?  Get set.  Go.

…

Now take a moment to explore how you feel after engaging in that exercise (which is just one of many ways to engage in mindfulness meditation).  Studies show that regular practice can help reduce stress, regulate emotions, and increase awareness and self-control, and I suspect that you feel calmer and more focused than you felt a few moments ago.  I am convinced that the physical, psychological, and emotional benefits of mindfulness meditation can lead to better outcomes at mediation.

In mediation, there are typically four kinds of participants: parties to a dispute, legal advocates, insurance claim representatives, and mediators.  As human beings, they bring to mediation their own perspectives, biases, and emotions.  For the parties on each side, passion frequently runs high, compassion frequently runs low, and judgment is easily clouded by ego, perceived past slights, and the general stress associated with being in an adversarial proceeding.  Enter the mediator, whose job it is to impartially facilitate the conflict resolution process.

Under such circumstances, how can everyone increase the likelihood of finding common ground?  By trying to remove the impediments to clear thinking: ego, indignity, and stress.  And what is the easiest way to achieve that end?  By seeking the benefits of mindfulness: increased awareness and self-control, regulated emotions, and reduced stress.

To those who are unfamiliar with mindfulness, this may seem hard to believe.  But to regular practitioners, the correlation between mindful meditation and mindful mediation should be obvious because the primary effects of mindfulness – reflective thinking, controlled emotion, the engagement of higher thought processes, and consideration of outside perspectives – are essential to rational negotiation.

Indeed, few things are better for settling differences than understanding other people’s thoughts, feelings, and perspectives.  It has been suggested that a successful mediation occurs when each side walks away equally unhappy.  I do not subscribe to that theory.  Instead, I believe that mediation participants can take positive steps to repair broken relationships and find common ground.  I also believe that through mindful mediation, where the participants are calm and controlled and use common sense, subtle shifts in perspective can transform zero-sum game negotiations into opportunities for mutual gain.

As an illustration, imagine that two children are arguing over an orange.  The first child claims she should have the orange because she was the one who found it.  The second child argues that the orange should be his – after all, it was his idea to play outside, and if he hadn’t made that suggestion, the first child wouldn’t have found the orange.  The first child can’t believe that the second child isn’t familiar with the age-old principle of “finders keepers”; the second child can’t understand why the first is so self-righteous.

The children finally decide that the only fair way to resolve their differences is to split the orange in half between them.  Before they do, though, a mindful mediator intervenes.  The mediator asks the children to explain why they want the orange, thus seeking an understanding of each child’s values.  The first child says she is hungry.  The second child explains that he needs the orange to bake a cake.

By this point, the mindful mediator will have ratcheted down the tension and injected into the situation a sense of calmness and structure – necessary elements for rational thinking.  Understanding the children’s values, the mediator then asks if their goals could be achieved by peeling the orange, giving the first child the entire fruit to eat, and giving the second child the entire rind to use for the cake.  Seeing the opportunity for each of them to walk away with a better outcome than if they had split the orange in half, the children decide to settle on those terms.  Moreover, because each child does not feel that anything was sacrificed for the other’s gain, their long-term relationship does not suffer.

Though obviously less complex than some high stakes negotiations, this story teaches an important lesson for any negotiation: slowing down, keeping a cool head, and taking emotions out of high pressure situations can lead to better outcomes for the parties.  In that way, achieving the benefits of mindful meditation can lead to more mindful mediation.

Adam Myron is an attorney with the law firm of Day Pitney LLP, where he focuses on complex commercial and business litigation, trust and estate litigation, and professional liability litigation. Adam is also a Florida Supreme Court Certified Circuit Mediator and a Florida Qualified Arbitrator.  You can email him at [email protected]. 

For additional ADR tips and resources go to http://www.palmbeachbar.org//adr-2.