It’s been believed and now it is confirmed, in mediation, creative solutions can be achieved. (The recent mediation in Detroit, featured on the home page, is a solid example.) A study in Denmark and Norway, in 2014, the subject of an article in Negotiation Journal (October, 2014), found that the majority of civil cases that were mediated–divorce; probate; contracts–produced creative solutions, defined as solutions that contained elements beyond those that were reported in the court filings.
Two stories in August highlight the value of mediation in complex cases, one the bankruptcy of the city of Detroit, and the other, the settlement of the lawsuit against the National Football League. In both cases, mediation was the choice of process to help the parties reach settlements.
First, the NFL case, from the New York Times coverage of the NFL case, there is this quote from Layn Phillips, the mediator:
“Rather than litigate literally thousands of complex individual claims over many years, the parties have reached an agreement that, if approved, will provide relief and support where it is needed at a time when it is most needed.”
Second, the Detroit bankruptcy case, from coverage by MLive, a Michigan online site, the bankruptcy judge has this observation on why he appointed a mediator:
“The purpose of bankruptcy is to give the city a fresh start. After this bankruptcy case is over, many of the creditors will continue to have long-term commitments with the city…Consensual resolution of the city’s disputes with its creditors is in the best interest of the citizens of Detroit.”
What guides mediator decisionmaking? Kenneth Kressel and his colleagues used reflective research methods to explore this question in three studies, which he
describes in “How Do Mediators Decide What to Do? Implicit Schemas of Practice and Mediator Decisionmaking” (Ohio State University Journal of Dispute Resolution,
2013, p. 709). The theme that threads through all three studies is that mediators make decisions that are derived from their unconscious and personal ideas about “the nature of conflict, the goals to be attained byintervention, and implicit intervention ‘scripts’.”
The first study utilized reflective team debriefings of live family mediations to explore why mediators made particular decisions. In the debriefings, the mediators involved in the study all discussed the decisions they made and the reasons for them. The study pointed to two approaches to mediating: the problem-solving style (PSS) and the settlement-oriented style (SOS). Mediators utilizing PSS focus on in-depth problem-solving, while mediators taking the SOS approach focus on surface positions and settlement. The study found that while both approaches are helpful, PSS worked better for more polarized cases. The study also revealed that mediators know much more than they can say, since so much decisionmaking is based on tacit knowledge that is largely unconscious.
Two important court decisions relating to the practice of mediation have occurred recently, one in New York and the other in California.
Click here for more information.
The State of New Jersey has established a program to provide mediation for people facing foreclosure of their homes and who wish to take advantage of an opportunity to negotiate new terms for their mortgages with their lenders. Information about the program can be found at http://www.judiciary.state.nj.us/superior/foreclosure.htm
The direct link to the website of the New Jersey Supreme Court’s Civil Practice Division is as follows: http://www.judiciary.state.nj.us/prose/11290_foreclosure_med_info.pdf