“Two table” approach to mediation
The purpose of the “two table” approach to mediation is to hypothetically split the settlement negotiation table into two tables: Table 1 – at which we discuss and assess the legal realities; and Table 2 – at which we discuss and assess the business possibilities for resolution. These two are separated to clarify the distinctions between the path the parties are on (proceeding to court) and the path that may provide superior resolutions that have not yet been identified. Settlement discussions are improved when these concepts are separated for discussion and evaluation.
My personal mediation goal is to have us agree on and use a process that permits the fullest possible exchange of ideas and views to bring clarity to your individual decisions about whether to (i) resolve this case by finding a negotiated solution or (ii) proceed to trial and possible appeal. If you have increased understanding and clarity about that decision, and we have worked to find creative negotiated resolutions – then the mediation has been a success in my view. The process goal of this mediation is to give the parties the best possible look at your options for resolving the dispute. Can we find an agreement that is better for all parties than going to trial?
I suggest that mediation generally be conducted in the following phases: Contracting, Table 1, Table 2 and then the Integration of the information learned.
Mediation is best begun with a brief discussion of mediation basics to ensure some common understanding of the process. What are the roles of the participants and mediator? What additional safeguards are needed? Do we have a collective goal for this process? How can we work to get the best communication and avoid any past communication problems? How can we deal with impasses?
“Table 1” Testing the legal realities: what are the parties’ trial risks and opportunities.
After discussing roles, we move to “Table 1.” The goal of this phase of mediation: A clear look at the legal realities of the dispute. What will be presented at trial (and potentially at appeal)? If we cannot find an agreement in this mediation, what does each of us face by going to trial and possible appeal?
Some mediators approach this task by privately giving each party the mediator’s view of strengths and weaknesses of each party’s case. Although this is common, I think the approach is often abused – with parties thinking that the mediator is taking sides or manipulating one or more parties. In fact, that can and does occur. Some mediators do not like to discuss the lawsuit for fear of alienation or highlighting the conflict. Yet, if we are thoughtful, we can and should discuss the litigation because it is the result if you do not settle.
I prefer that we have a discussion of the lawsuit among all parties so that each party has a solid understanding about their own and the other parties’ views of the case. We benefit by discussing what the judge (or jury if applicable) will need to decide. The goal is the education of the entire group (parties and mediator) — for the purpose of full understanding rather than a semi or private, non-binding evaluation/decision by the mediator. I do not expect one party to persuade another of their cause — rather, the key issue is understanding.
Without disclosing trial secrets or tactics, can we discuss the following:
- What are the key legal and factual disputes?
- What is our agreement and disagreement on the legal issues and authorities?
- What are the relationships among these issues?
- What are the “swing” issues? On what issues will the case turn?
- What causes one party to win or lose (some or all of the case)?
- What do we think the judge will have to do with these legal issues? What judicial resolutions are reasonably available within the scope of the authorities?
- What judgments or verdicts are possible? What are the ranges of resolution for the court?
“Table 2” – Looking for options for resolution.
After Table 1, we should discuss options for resolution. The goal of this phase of the mediation is set aside our litigation “frame of mind,” and work together to see if we can find options that serve our interests better than proceeding to trial and appeal.
- What are the parties’ needs for a solution?
- What issues are important to each party, and why? (As regards the lawsuit and the parties past and future relationship).
- For a comprehensive settlement, what issues do we need to resolve by negotiation?
- Brainstorming: Can we search for creative options for resolution (adding issues for resolution, perhaps combining or separating issues)?
- Can we create a “settlement template” that shows the various ways of resolving this dispute?
- Exchanging options and making proposals for resolution. Can we look for “productive compromises” and “improvements” to the best options found. We should then compare options presented with our “Interests” – Which options best satisfy our Interests?
Integration of Table 1 and Table 2
At this point, the parties make their settlement decisions. Is there an agreement that is better for the parties interests than the risks and benefits of trial?