Summer is always a busy time for CLE seminars, especially on the Arkansas side of the muddy Mississippi since June 30 is the end of the CLE year there. Even though it blocks more days on my calendar and I don’t get paid for doing so, I always accept when I’m asked to speak at these events because it allows me to (1) see old friends and former colleagues; (2) remind those friends and colleagues that I’m still alive and kicking; and, (3) educate (hopefully) those friends and colleagues on the finer points of mediation.
During a two week period in June I spoke at the Arkansas Bar Association Annual Meeting in Hot Springs (in the dreaded “death slot”, late Saturday morning the last day of the meeting), as well as “last chance” seminars in Fayetteville, Little Rock and Jonesboro. Aside from cutting into my billable hours and depreciating my vehicle at an alarming rate, I think I’ve managed to satisfy the three reasons for speaking I described.
Speaking in front of crowds has never bothered me. I’ve known attorneys who steered clear of a career in litigation because courtrooms in general and juries in particular intimidated them. To me, that has always been the fun part of the profession. Same thing with speaking at seminars. If given an hour to speak, the time seems to fly by and I’ve never been left with time on the clock and nothing to say.
One thing I always keep in mind is that I can’t just give the same talk over and over. The material needs to be fresh, topical and with sufficient entertainment value to hold an audience’s attention. Because of this, I will often pull out my materials and update them so that someone who may have heard me speak last year in Little Rock won’t hear the exact same thing this year in Memphis. My recent efforts to update my mediation presentation resulted in this month’s article.
Who knows where the expression, “It takes two to tango” originated? I don’t. But I do know that whenever you hear it, the person who says it isn’t talking about dancing. The subject is usually hanky-panky; specifically, a discovered affair that results in the two participants blaming each other for the tryst. Excuses and attempts to deflect blame for these indiscretions almost always fall on deaf ears, because any reasonable person knows that, “it takes two to tango.” Stated another way, if one of the guilty parties hadn’t felt like tangoing, it wouldn’t have happened.
Well . . . in a typical two-party mediation, it takes five to tango. If one of the five shows up with the wrong attitude, the tango doesn’t happen. Instead, the parties are left on the sidelines, never getting an opportunity to enjoy the dance. And when you consider the time and money invested in getting to the dance in the first place, it’s a shame when all you get to do is hum along with the music.
Who are these five that are indispensable to the process of tangoing? Isn’t it obvious? The two parties, the two attorneys, and the mediator. If it’s a three-party case, it takes seven to tango. If it’s a four-party case, well, you get the idea. Let’s examine what each participant needs to bring to the dance floor.
The parties to a dispute, especially plaintiffs, normally don’t have a clue what mediation is until they are educated on the process by their attorney. They are the novice dancers. Perhaps they signed up for dance class because they needed a final credit to graduate (not that I would know anything about that…). Whether they succeed will depend almost entirely on how well they are prepared to tango. To be adequately prepared, they must approach the tango with the proper frame of mind.
For a successful mediation, the parties must come to the session knowing the following:
– Mediation is not the trial, or a hearing, or an arbitration. It’s informal and the goal is not to win, but to resolve the dispute through compromise.
– The mediator is not a judge, or a jury, or an arbitrator. He or she is a neutral third party who will help the parties explore the wonderful world of compromise.
– The goal is not the party’s best day in court; it is satisfactory resolution.
– An open mind is essential, as positions on issues may need to be reevaluated during the course of the day.
Understand these things, and the parties will be ready to tango.
Just as important to the tango as the parties are the attorneys. Think of the attorneys as the parties’ dance instructors. A poor instructor will leave a dancer with bad rhythm, awful footwork and toes getting stepped on to the point of bruising. With instruction like that, it’s no wonder the parties inevitably lose faith in the process and go home without a settlement.
On the other hand, a good instructor instills confidence in the students and keeps them engaged in the process of learning the tango. He is an encourager, not a critic. And his students almost always enjoy their tango, feeling enriched and fulfilled after the dance.
What makes an attorney a good tango instructor, an asset to his students and not a liability? Among the many traits are the following:
– Know your case. Be educated on the law and the facts, and have a reasonable idea of the case’s value.
– Don’t undermine the mediator. Engage in spirited debate when necessary, but keep in mind that he is trying to help your client. Back him up as he converses with your client.
– Never grandstand in front of your client. Puffing and being filled with righteous indignation may score points with a jury, but it doesn’t help the mediator who’s trying to broker a settlement.
– Be receptive when the mediator points out weaknesses in your client’s case, and counsel your client accordingly.
The attorney who understands his role and follows it consistently during a mediation will inevitably leave with a satisfied client. Rather than hindering the process, he has helped it. He has prepared his student to tango.
Imagine having an intense desire to tango and being prepared by the best tango instructor in the city. You go to the New Year’s Eve gala, wearing your flashiest clothes and your new dancing shoes. You wait until the moment comes to hit the floor . . . and the owner of the facility turns out the lights and tells everyone it’s time to go home. All that preparation; all for naught.
The mediator is the gatekeeper of the process. It is not his job to negotiate for the parties, or to tell them what they should do. It’s not his job to tell them when they are right or wrong. The mediator’s job is to provide the most advantageous forum possible for the resolution of the dispute. He helps the parties get off on the right foot. He encourages them throughout the day. He does what he can to sustain the momentum that the parties have created. He facilitates, persistently.
Just like parties and attorneys, the mediator can have a bad day. When that happens, if the parties settle it is probably in spite of the mediator and not because of him. That’s a scary thought, particularly since the mediator is being paid for his efforts. More times than not, when the mediator has a bad day he goes home knowing that he missed an opportunity to help the parties settle. That should never happen. Sometimes it means leaving the lights on until the wee hours of the morning, but that’s part of his job. He must leave those lights on, leave the music on, keep the floor swept, and provide the nicest dance floor he possibly can.
When it comes to mediation, it truly takes five to tango. With all five working in concert, they will make beautiful music together and let’s face it: that’s why we tango in the first place. No one wants to pay for the privilege to tango, only to go home with a dance card that didn’t get punched.