Method To The Mediation

Dave Stafford for www.theindianalawyer.com

Larry Bridgesmith has been in between bickering businessmen and feuding physicians. He’s been called in to try to solve problems when dysfunction between normally high-functioning professionals has undermined organizations.

Like many mediators, he’s dealt with situations where “reason has left the building,” when parties in mediation have become irrationally emotional, entrenched in their positions, or unwilling to negotiate. That’s what the Nashville, Tennessee-based attorney and ADR luminary came to Indiana to talk about.

Bridgesmith

Bridgesmith was the featured presenter at the fifth annual Midwest Mediation Conference, hosted by the Indiana Association of Mediators on Sept. 25-26. He focused on difficult mediations, and he’s had his share, ranging from Fortune 500 companies to hospitals and universities.

“Mediators are about helping people regain their cognitive abilities,” Bridgesmith said. Neuroscience is providing insights into how people process information, and the breakthroughs in this understanding can lead to breakthroughs in alternative dispute resolution.

“I can’t instruct someone to change the way they think, but I can ask questions that enable them to change the way they think,” he said. About 80 percent of the time during mediation, Bridgesmith wants to be listening, talking only 20 percent of the time. And when he speaks, he should almost always be asking questions.

“Questions help (participants) move from their experiential mind into the cognitive brain and look for answers to the questions,” Bridgesmith said. “You can’t do it coercively. … The power of the question really opens people to examining different positions than the ones they’ve taken.”

By analyzing the importance of the issue in dispute and the importance of the relationship between disputing parties, Bridgesmith believes these variables can be charted to suggest what may be the best course of action toward resolution. For example, disputes involving very important issues but insignificant relationships are likeliest to result in conflict, perhaps litigation. Where relationships are paramount and issues minor, accommodation should be the strategy.

“There are a variety of conflict responses,” he said. “You need to be strategic about how you reach into the tool box and find one that works best in the circumstance you’re in. … These are what I believe to be neuroscientifically established tools to help people step back from the ledge, look back at the situation from the balcony and see it more objectively.

“There’s virtually no place of any description where, first of all, conflict doesn’t arise, and secondly, these tools aren’t useful,” he said.

Shelemey

Valparaiso attorney and mediator Lea Shelemey said Bridgesmith gave her a lot to think about and incorporate in her practice primarily mediating family law cases. He stressed the importance of teasing out the underlying interests among parties and the importance of being strategic by asking carefully phrased questions.

A lot about how to ask those questions and direct the discussion can be gleaned through what Bridgesmith calls convening – taking time in advance of mediation to speak with the attorneys and parties who will be involved. Doing so can set goals and expectations and get an idea of the parties’ objectives for resolution. It also can serve as an icebreaker and help get parties prepared and willing to negotiate.

“It’s critical to do the convening, and it may even help us to anticipate barriers,” Shelemey said.

Impasse is a perennial issue for mediators, and Shelemey said Bridgesmith suggested the time spent convening ahead of mediation could help resolve situations where a party is resistant to the process or standing in the way of resolving issues. The up-front process could mitigate feelings of parties who believe they aren’t being heard.

“You can even return to that during the mediation,” Shelemey said of the convening concept.

Thrasher

Attorney and mediator Ann Thrasher runs the civil and family law alternative dispute resolution program in Hendricks County and is president of the Indiana Association of Mediators. She said Bridgesmith’s presentation builds on CLE training the conference has provided in past years examining developments in neuroscience.

Thrasher said well over 80 percent of the family law cases she deals with result in resolution. The toughest cases are those in which one party doesn’t believe in divorce and simply won’t be moved, even though the divorce will happen with or without the spouse’s consent.

“I’ve very rarely had anyone say, ‘I’m not budging on anything,’” Thrasher said. She stresses to clients that it’s in their best interest to craft agreements they can live with rather than leaving it up to a judge. But disputes aren’t always logical.

“I’ve had several cases where somebody looking from the outside in would say, ‘You’ve figured out all the really tough topics, but why are you stuck on this one piece of furniture?’” she said. “At the same time, it means something to each of them.”

Mediators say sometimes a party’s intransigence can be dealt with by reminding that person of concessions from the other party. Reminders of those gains compared with where talks began sometimes can spur compromise.

Bridgesmith, who also teaches at Vanderbilt Law School and founded the Institute for Conflict Management at Lipscomb University, said mediators should be willing to spend as much time as possible working toward resolution. He cited an American Bar Association survey that found the leading contributor to failed mediations was mediators who the parties said gave up too soon.

The tools Bridgesmith advocates to use aren’t just valuable in non-domestic civil mediations, in fact, they might be even more valuable in family law cases. There, “the relationship is bigger, stronger, longer lasting and more powerful than whatever the issues are.”

Parties who come to mediation are already at impasse to some degree or they would have solved their disputes themselves. In mediation, some conflict should be expected, as well as occasional irrationality. Bridgesmith confesses some himself.

“I have to say I have irrational optimism. … I don’t give up until they stop returning my calls.” And that rarely happens, even when the stakes are high and dysfunction is the defining characteristic.

“Change comes when the pain of change is more attractive than the pain of staying the same,” he said. “If you trust this process – the process, not me, not my ability, but the process – it will bring people to a point where they can resolve their differences.”•