Co-Mediating an Appellate Case
Judy Mazia and I met in the Court of Appeal Mediation Program training class and decided that we would like to mediate together. We got our chance several months later.
The case was a probate appeal that involved 4 parties, 4 lawyers and some very emotional family issues, including a paternity dispute and allegations of domestic violence. During the pre-mediation phone conference with the four attorneys, one of them asked us how and why we were working together. I responded that the "how" involved very careful planning and that the "why" involved our complementary backgrounds and skills.
Judy Mazia has years of probate experience as an attorney and I have years of mediation experience. When I added that I was not an attorney, the response from the questioner was, "that's great, you will bring a different perspective to the mediation." Since it was our first appellate mediation together, we made very careful preparations. We discussed all the steps and divided up the tasks. Judy did most of the emailing to the lawyers and she always emailed me her drafts first for my comments and suggestions. I prepared outlines for both the pre-mediation phone conference and the mediation session and discussed them with her. In these outlines, I listed all the steps we wanted to cover and assigned each one to one of us or occasionally both of us. I gave the more legal issues to Judy and the more process issues to me.
Since, we both wanted to work in both areas, we occasionally reversed the roles. We also agreed that either of us could comment on what the other said and also knew that we had to be flexible and see how things worked out in reality. During the mediation, our style was fairly transparent which meant that we discussed our plans openly with the parties and their counsel. This openness had the added advantage of facilitating our communications with each other. We did have a separate room where we could meet and talk in private. Our goal was to keep the parties together as much as possible to facilitate their ability to communicate directly with each other.
We were able to conduct the entire mediation in joint session. In the morning we explained the agenda for the day, had the parties talk to us and then to each other. After a brief lunch break, we started to define the problems to be solved and to ascertain where we had agreement. Then the attorneys stepped in and began the process of negotiating and finding solutions.
For most of the afternoon, our role seemed to be to observe, provide encouragement and keep the mediation on track. As offers and counteroffers were made, the parties and their counsel would leave the room to have private discussions. Finally, they were only $3,000 apart. At this point an interesting phenomenon occurred. Both sides felt they had given up too much, couldn't give any more, and even started to backtrack. We emphasized the progress that had been made, talked about the alternatives and encouraged them to continue.
They finally agreed to split the difference, which was something that Judy and I had discussed suggesting and decided not to do. Thinking about this situation later, I realized that I had understood this phenomenon that we might call "buyers' remorse", but had never thought about it consciously. In the future when a similar situation occurs, I will try to explain that this is a normal stage in the process, validate their feelings of fear and loss, and tell the parties that their doubts and concerns are a good sign that they are close to a resolution.
When the mediation concluded, all the attorneys expressed their amazement that a settlement was reached. One of the attorneys, who had objected to the case being assigned to mediation, admitted that he had been wrong. In a follow up conversation with him after the mediation, he said that he had been very nervous at the beginning of the mediation, (this very competent attorney actually spilled half a pitcher of water on the table as we started), because he had never been in a mediation where the parties spoke so much. He said that he was worried about what his client would say. He told me that he had listened very carefully to the clients on the other side and had heard things that he had never heard before. He said that he felt that the conversation between the parties was not only helpful, but also essential to the ultimate success of the mediation. Judy and I were pleased with the way we had worked together and look forward to co-mediating more cases in the future.
Judith A. Mazia is a probate, trust attorney and mediator practicing in San Francisco. She can be reached at (415) 434-1810 or email@example.com. Judith A. Gordon is a mediator and mediation trainer practicing in Walnut Creek, California. She can be reached at (925) 938-2525 or firstname.lastname@example.org.