December 05, 2016 Articles

Multiparty Mediation

By Edmund J. Sikorski, Jr.

Mediating multiparty disputes involves many of the same issues and techniques encountered in a typical two-party proceeding but often exponentially expanded due to the number of parties, issues, and perspectives involved. This increased complexity is the result of not only the number of participants but also inherent differences in negotiating styles, participants' relative authorities, divergent viewpoints, and unequal access to information. These factors can make it harder to achieve a global resolution of the issues involved.

Unique to multiparty mediation is the presence of coalition dynamics that may very well be in a constant state of flux. Coalition dynamics have been described as follows:

Once three or more conflicting parties are involved, coalitions may form and act in concert against the other disputants. Those left out of a coalition may often be worse off than they were before negotiations began. Unlike in bilateral negotiations, where typically one party cannot affect the other party's BATNA, in multiparty negotiations, those left out of [the] deal may often find themselves worse off [than] if no deal were made.

Robert H. Mnookin, "Strategic Barriers to Dispute Resolution," 8 Harv. Negot. L. Rev. 1 (2003). 

BATNA is defined as a well-thought-out "best alternative to a negotiated agreement." Fisher, Ury & Patton, Getting to Yes: Negotiating Agreement Without Giving In (Penguin 2d ed. 1991).   

This article identifies some of the unique elements of multiparty mediation and suggests procedures to manage them, requiring early coordinated efforts between the mediator and the parties, as well as providing cognitive coaching ideas to facilitate the mediation process.

Mediator or Co-Mediator Selection
Selection of a mediator or mediation team has a witch's brew of two ingredients:

1. process management skills, approach, and techniques; and
2. subject matter knowledge of the matter in dispute.

Depending on the nature of the case, a mediator may have to come up with and pose the right questions to the right persons to facilitate resolution. A mediator with subject matter knowledge and expertise may provide those questions and gain the respect and confidence of the parties. A hallmark of an effective mediator is the ability to hear what is not being said so as to cut through to the real motivating issues.

Certain multiparty cases may warrant a mediation team approach as a matter of efficiency and economy of process. Situations where there are groups of plaintiffs and defendants who must decide on coordinated efforts are candidates for a mediator team approach. There will simply be too many "moving parts" for one person to track.

Construction claims and insurance coverage disputes are often good candidates for a mediation team approach so that both sides can remain actively engaged during long pauses that inevitably occur when one side waits while the other side conducts a mediation among its members.

This approach is subject to the caveat that each mediation team needs to develop a planned and coordinated united front such that the mediators can work as a team driven toward joint problem solving. One example is where one mediator may have substantial subject knowledge while the other has substantial process skills. Both can exert pressure to maintain focus on the problem substantively and procedurally. Another example is where one mediator speaks while the other observes and takes notes, and then confers with the first mediator in a private meeting between the two. A good analogy is a second chair attorney at trial or a trial consultant.

Organization and Management
Conducting pre-mediation caucuses to discuss and chart an organization and management plan for the mediation is the linchpin of multiparty mediation success. A close analogy is found in examining the extensive preparation required to orchestrate and produce a theatrical performance. While there is no guarantee that the mediation will result in a successful agreement, the thoroughness of the preparation will often maximize the chance of success.

The mediator should apply observance of the organizational problem-solving rule: the five Ws and one H. Identifying the who, what, when, where, why, and how is essential to constructing the building blocks of a multiparty mediation. These are the questions to be asked and answered in order to think through problems and arrive at reasoned conclusions.

Discussion of the following subjects should begin in pre-mediation caucuses because they are the building blocks of the overall design and management of the process. Once the design parameters have been established, they can be developed in mediation briefs that are given to the mediator and exchanged with the other participants to be reviewed by the appropriate decision makers well in advance of the formal session.

Who? Obtain the names of all persons who will be participating, including their titles and representative capacities. Determine whether all stakeholders and decision makers are included so that a final resolution can be achieved.

Ask the participants their view on who is necessary to be at the table. Because only the mediation participants will be bound by any settlement agreement if that is reached, the existence of others parties who may be affected should be explored.

What? A mediator needs to have a basic working knowledge of the straightforward and unspun facts to effectively mediate any case—even more so in multiparty situations:

• What is the case about from each point of view?
• What are the perceived issues of each party?
• What are the hidden issues (if any)?
• What are the goals of each party?
• What are the common legal and factual differences (if any)?
• What happens if there is no settlement?
• What are the practical arrangements for drafting and circulating any drafts of a settlement agreement?

When? Scheduling of the formal mediation conference in a multiparty case takes considerable advance planning, not only because of the number of participants but also because of the potential for complicated transportation and lodging arrangements. Coordination of dates and other practical arrangements are best left to the parties with the assistance of office administrators, not the mediator.

Where? The choice of facilities that can accommodate all parties, their counsel, and support staff is also important. There must be sufficient room for joint sessions and for caucuses of plaintiffs individually and as a group so that unified and collective offers and counteroffers can be made and considered. There also needs to be attorney breakout rooms.

Coordination of venue must also include the availability of food and beverage and facilities to help ease the frustration that invariably occurs during long delays that are simply part of the negotiating process.

Why? Mediators are cognitive coaches who strive to keep the parties focused on the real issues that require resolution. The focus of the process must be to keep the question of "Why are we here?" in the forefront of the process.

The answer to that question always has two components:

• economy of process of dispute resolution and
• creation of a solution that all can live with as contrasted with a solution imposed by fiat that few, if any, can live with.

How? The length of time the host facility will be available and the facility's flexibility to adapt to the changing needs that may be encountered should be explored as part of the advance planning process.

The cost of hosting the mediation session and the payment of all related costs must be determined and agreed to by all parties and should be included in the mediator's engagement letter or the parties' agreement to mediate (or both).

All participants must set aside and commit appropriate time as well as be flexible in their travel and lodging accommodations to allow the mediation process sufficient time to be completed.

Pre-Mediation Party Caucuses
Plaintiffs and defendants equally need to coordinate among themselves reasonable verdict ranges, a settlement analysis and range of settlement values, first offers, and even guidelines for developing and delivering further offers and counteroffers.

Issues relating to each party's share of any payments or settlement funds should be resolved in pre-mediation party caucuses to prevent later disagreements.

The parties need to determine their BATNA well in advance of the formal session. "Preparing for Multiparty Negotiation," Harvard Program on Negotiation Daily Blog, Jan. 16, 2015.

Mediators may help the parties plan to assess their respective BATNAs in pre-mediation party caucuses by encouraging them to focus on a four-step process set out in BATNA Basics: Boost Your Power at the Bargaining Table, [login required] Negotiation Management Report No. 10 (Program on Negotiation, Harvard Law School):

1. List your alternatives. Think about all the alternatives available if the current negotiations end in an impasse. What are your no-deal options?
2. Evaluate your alternatives. Examine each option and calculate the value of pursuing each one.
3. Establish you BATNA. Choose a course of action that would have the highest expected value for you. This is your BATNA—the course you should pursue if the current negotiation fails.
4. Calculate your reservation value. That is the lowest-valued deal you are willing to accept. If the value of the deal proposed to you is lower than your reservation value, you will be better off rejecting the offer and pursuing your BATNA. If the final offer is higher than your reservation value, you should accept it.

The mediator may suggest that the parties use the following formula to assess their respective BATNAs:

   Likelihood of winning in court (%) x Value if win in court
+ Likelihood of losing in court (%) x Value if lose in court
− cost of litigation


= BATNA

There are two further admonitions especially applicable to multiparty negotiation:

1. Try to assess the other parties' BATNA so that you have a more realistic idea of what kind of arrangement may be possible.
2. Anticipate the fluctuating nature of each party's BATNA because of either new information that arises or the formation of intraparty coalitions. See Mnookin, supra.

The foregoing discussion is intended to be matters the mediator should consider and bring to the attention of the participants as a cognitive coach and not as an evaluator.

Mediation Briefs       
Mediation briefs should not be repaginated motions for summary judgment. Mediation briefs tell the mediator in advance the essence of the factual and legal dispute in as an objective manner as possible and thus help the mediator fulfill the function of a cognitive coach in focusing the parties on the real issues and in formulating reality testing questions. The goal is to objectify the claim, position, or defense. Simplicity, not advocacy, is best.

Mediation briefs are also an opportunity to persuade the other side by presenting facts, arguments, and summaries that demonstrate the disadvantages and risks the opponent will incur if it takes the case to trial and that show why resolution on your suggested terms is in your opponent's best interest.

Conclusion
Why is multiparty mediation worth all of the time, effort, and money it takes to orchestrate, manage, and complete?

The first part of the answer is that the mediated resolution of complex disputes usually is more economical because it eliminates formal discovery requirements, motion practice, lengthy trials, and the expenditure of the combatants' time, energy, and resources for years to come. The victor may very well find that it is the one that is vanquished.

The second part of the answer is that the solutions reached through mediation can be much more imaginative than a judicial resolution could provide.

Keywords: alternative dispute resolution, multiparty mediation, mediation preparation, cognitive coach


Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).