Back to Basics, Part I: Ghostbusters & Me (Web)
November 19, 2007
This is the 16th installment of The Master Mediator, a periodic CPR web column featuring commentary by Robert A. Creo that describes and discusses mediation room techniques and practice issues. The latest installment begins a three-part “Back to Basics” series.Back to Basics, Part I: Ghostbusters & Me
After presenting at the World Mediator Forum conference in Jerusalem in October, I was approached by Tzofnat Baker-Peleg, an Israeli mediator and conflict resolution consultant. In our discussions about mediation, she posed the problem of “ghosts” when mediating--that is, persons with influence over the outcome, but who are not physically present at the mediation session.
We engaged in a dialogue, remarkable for its common ground on the strategies and techniques to address this recurrent mediation problem. I explained my view of what I call “Phantom Negotiators”--decision-makers or those with influence who are not only absent from the table, but often are not identifiable until late in the mediation process. Every mediator has faced the daunting challenge of having worked long hours to obtain a tentative agreement, only to hear from one of the participants “I have to call to . . .”
(A) get authority.
(B) run this by ______.
(C) get advice from professional person ______.
(D) have written approved by E-mail or fax.
(F) All of the above.
Of course, in basic mediation training, we learn that each party must have persons with full authority at the table. Usually, this is easily arranged with the plaintiffs or claimants, since they often are individuals or small businesses. They are “real party in interest” participating at the table.
When parties are a business entity or NGO, high-level representatives with quick access to a chief executive officer or board of directors, who have real authority to make the concessions necessary to progress from momentum to settlement, should be established at the outset.
If there is a public body as a party, it is easy to anticipate in the mechanics of the approval process and to arrange the appropriate presentations, deliberative process and formal votes.
I have often briefed boards on the status of negotiations, specific proposals, and resolution prospects. In one public sector construction claim, we scheduled the first mediation day on the date that the school board had its regular meeting, so I could meet with the entire board that evening while in the midst of the mediation session.
What is more problematic is reconciling the tensions and interests among multiple defendants, their executive bureaucracies, departments, and insurance carriers. It is rarely possible to engage all the true decision makers in person in an all-day mediation session. Barriers to participation include:
--Geographic distribution of participants.
--Front-line representatives intentionally giving limited authority or marching orders.
--Corporate approval processes.
--Threshold amounts needing additional review and approval processes.
--Decisions made by committees.
--Cost-benefit analysis of expense of participation.
--Concern that participation of specific disputants will be counter-productive.
--A strategic choice to limit or shield some individuals from other participants, the mediator, or the process.
--A belief it is more difficult to push no-show defendants and non-participants to contribute toward a global settlement.
This is just a quick list of good- and bad-faith dynamics that create phantoms, ghosts and, other “spirits” haunting the mediation process.
One case application of ghost-busting involved a claim by a deeply religious woman who would not make a final decision without the literal blessing of not only her minister, but also her lay spiritual adviser.
In this court-monitored case, the assigned trial judge met with both advisers to discuss the implications of a trial versus settlement following substantial progress during the mediation session, which was conducted at a courthouse. The judge was able to explain the workings of the courtroom in a manner which complemented my mediator work.
So how does the mediator become a Ghostbuster? Here are some of the approaches I have used over the years:
(1) Tee Time: Setting a telephone conference, and/or ex parte calls, to formulate a participation roster during the convening stages;
(2) Ally-Ally-in-Free: A formal exchange of a written roster 10 days in advance of any bargaining session. I have a template document that is E-mailed to the parties for return. (It is available at www.rcreo.com.)
(3) Meet Me in St. Louis: Meeting with counsel and representatives if warranted by geographical convenience, or the large size or number of claims or party members. This can be a joint meeting, or done “asymmetrically” with any one of the parties.
(4) No Place to Hide: A scheduling and planning session to engage key decision maker, especially public officials at appropriate points of the process.
(5) Dialing for Dollars: My “Agreement to Mediate” specifically authorizes me to personally communicate with any individual with decision-making authority. (Also available at www.rcreo.com.)
(6) Remote Controls: Participation of remote participants via telephone, video conference, chat rooms, or other electronic means.
(7) Status Calls: Periodic updates by those present, including me, by telephone as the mediation unfolds, including text messaging.
(8) First Caucus Check: An exploration in the first caucus of the dynamics and mechanics of settlement approval, including authority to execute a binding settlement document. Addressing this issue in a joint session is not productive for a number of reasons, notably because bargainers do not want to appear weak in front of their opposition by not having full power. It also opens up a premature debate on whether the mediation will be a “waste of time” since it may appear that the persons with sufficient authority sent only “flunkies” to negotiate. This usually includes “bad faith” charges and other allegations of nefarious tactics. Sometimes this is true. But skilled mediators confront these elements successfully daily to reach resolution.
(9) Transparency: Advise counsel and parties of participants’ authority limits within a constructive framework. If the authority barrier is insurmountable, then create a new model while continuing the proceedings. Or, when necessary, declare an impasse for that session--but not the process itself. Remember, the mediation is a process and not an event.
(10) Here Comes the Judge: If the case is within a court program referral, the mediator may be able to enlist the program administrator, or a judge, to address--or even compel–the attendance of specific appropriate party representatives. I have used court order templates for a variety of circumstances.
So, when facing the will-of-the-wisp negotiator, or a spirit whispering in a decision maker’s ear, remember: Who You Gonna Call?
BY ROBERT A. CREO
The author, a Pittsburgh attorney, is a mediator and arbitrator. He also represents parties in alternative dispute resolution and designs conflict resolution systems. He is a founding member of the International Academy of Mediators (see www.iamed.org), and served as its president between 1997 and 1999. He also is a member of Alternatives’ editorial board. His new book, a two-volume, loose-leaf ADR reference, titled “Alternative Dispute Resolution: Law, Procedure and Commentary for the Pennsylvania Practitioner,” is available via publisher George T. Bisel Co. at www.bisel.com. He can be reached at firstname.lastname@example.org.