Many of us are familiar with the studies and literature detailing the impact of isolation during the COVID-19 pandemic. But little has been written about the impact of client isolation in mediation. While procedural fairness, i.e. “a balanced process where each party is given an opportunity to participate and make uncoerced decisions” is the core of a quality mediation process,” client connection is so essential to providing a quality process that it is one of the standards expressly delineated in the Model Standards of Conduct for Mediators.
Storytelling can be critical to providing a balanced process, especially when conducted in a mindful way. In 2022, Elaine Greenburg wrote, “The dispute resolution system is built on a restorative justice framework and draws on an interdisciplinary understanding of the physiology and psychology of racial stressors.” Ms. Greenburg’s statement is from her article proposing that law schools rethink their curricula to constructively address racial stressors. But the statement is also applicable to the mediation of employment cases, especially those involving claims of racial discrimination.
Most individuals seeking redress for racial discrimination believe they were not heard in the workplace and/or that their role was less than that of their counterparts. Effective and mindful storytelling in mediation can give them a voice, provide a meaningful path forward, and ensure a quality process.
Facilitating mindful storytelling begins in advance of the formal mediation session. An effective mediator will have pre-mediation communications with the plaintiff’s attorney in which the mediator receives input from the attorney on dynamics and nuances that go beyond those asserted in the pleadings or a written mediation submission. During pre-mediation communications, the mediator can develop a dialogue to assist the attorney in gaining an understanding of why the mediator needs to directly communicate with the client. The communications should not be limited to the plaintiff’s attorney, however. Having a dialogue with the attorneys for each client in advance of a formal mediation helps facilitate storytelling to form the foundation for resolution.
Cases rarely resolve because the parties reach agreement on any allegations or defenses. Rather, cases often resolve because the mediator assists the participants in working through dynamics, needs, and interests that are not often apparent from the pleadings. In pre-suit mediations, these dynamics, needs, and interests may be even more important because often the aggrieved employee continues to have an active role in the business or organization.
Too often, attorney-advocates aim to control the mediation process, especially in litigated cases. One can empathize with the difficulty of yielding control during mediation. However, an effective litigator can be an effective advocate for their client by better understanding how and when to yield control. After all, mediation is one of the few times during litigation where a client has a direct say in what happens or in what should happen, a key to self-determination. As Bob Wright noted, “[t]wo underlying principles of self-determination are that barring obstacles, the parties themselves can decide which outcomes will work best for them and people who develop their own agreements are more likely to honor them.”
It is not without concern to mediators and attorney-advocates that clients who engage in storytelling can negatively impact the process. However, with appropriate parameters and reframing the conversation in a mindful way, there is little risk of a negative process.
A particularly helpful definition of mindfulness is “the basic human ability to be fully present, aware of where we are and what we’re doing, and not overly reactive or overwhelmed by what’s going on around us.” Many successful mediators keep this definition in mind when preparing for and engaging in mediation. By being fully present and encouraging clients to do the same by appropriate storytelling, participants are more satisfied with the process and thus more likely to find a way to resolution.
Storytelling is not reserved for select employment cases, but is also useful in commercial disputes, product liability cases, and more. Understanding from a party how an errant product impacted them beyond an obvious physical injury or learning about the elements of product development from the developer can help advance a dialogue for resolution. Likewise, drawing on experiences of businesspeople who are otherwise entrenched in an emotional contractual dispute can result in in finding a common ground to build a framework for resolution.
Storytelling can also enhance cultural competency. Jan Carter-Black wrote an article more than a decade ago about the depth and knowledge of social work practice, noting in part that cultural competency in storytelling between groups develops awareness, appreciation and understanding of diverse groups. In mediation, storytelling between individuals facilitated by an experienced mediator often leads to greater awareness and understanding, fostering a quality mediation experience.
