Solution-Focused Mediation

I heard a talk at the Southern California Mediation Association conference last week, by a Dutch mediator Fredrike Bannink, who described her solution-focused method of conducting mediation, which minimizes talking about the problem that caused the conflict, and instead concentrates on strategies that might work to resolve and prevent conflicts. Rather than asking the parties to argue their positions, she asks them questions like, What are your hopes? What difference would it make if the conflict could be resolved? What strategies are working for you? What would be the next steps to solving this problem?



This approach to me crystallized the difference between mediation and litigation. Litigation looks backward, and invites the parties to rehash and perhaps even exacerbate the problem that caused the conflict between them. When mediation does the same thing, it may not be a better process. But when mediation asks the parties to think about how their lives might be better without the conflict, or about what aspects of their relationship are positive, then it can truly present an alternative way of resolving a dispute.

Bannink illustrated her method by asking two of the mediators in the room to role-play a divorcing couple fighting about the usual custody and property issues. She asked the pretend husband how he would rate his relationship with his wife on a scale of 1 to 10, and he gave it a 4. Many people would react to this statement by asking about all the reasons the relationship was so bad in his mind. But Bannink asked a question that caused an audible murmur in the room, almost as if a collective light was going on in our minds. She asked: "What makes up the four?" In other words, why is it a four when it could have been a one or a two? This forced the husband to talk about feelings he had in common with his wife, such as how much they both loved their kids. Then the mediator could build on the positive aspects of the parties' relationship to attempt to create an agreement.

This method may be a bit more difficult to apply in the situation where the parties want nothing further to do with each other after the dispute ends. But even in that situation, there may be an opportunity to explore the positive aspects of the parties' past relationship that could form a basis for a future agreement.

Read more...

Causes of Increased Litigation Costs

Gregory Joseph published an article entitled Federal Litigation--Where Did it Go Off Track? in the Summer 2008 issue of the ABA's Litigation magazine that helpfully lists a number of reforms to the Federal Rules of Civil Procedure (and their interpretation) over the past 25 years that have had the effect (intentional or not) of substantially increasing the cost of federal litigation. These include the expansion in the applicability of Rule 11 sanctions, the increased reliance on motions for summary judgment, new opportunities to challenge the admissibility of expert testimony, new rules governing class actions, new rules governing electronic discovery, and a re-statement of Federal pleading requirements (discussed below in my post of May 23, 2007).

Mr. Joseph believes that these changes have made a federal forum more desirable for defendants, and less desirable for plaintiffs. I would agree that these changes have made federal litigation more expensive, but I think the effects are not limited to creating a federal court advantage for defendants and a disadvantage for plaintiffs.
First, the effects of these changes are not limited to federal court. State practice also tends to follow the federal rules, whether by legislative enactments, judicial interpretations, or the translation by practitioners of federal customs and practices from federal courts to state courts. Therefore the effects of increased opportunities for procedural maneuvering in federal court trickle down to the state courts, and are increasing the cost and complexity of civil litigation everywhere.

Second, I think that plaintiffs have the ability to take advantage of rule changes as well as defendants. In some cases, it may be to the plaintiff's advantage to increase the cost of litigation, and to the extent the rules enable parties to do that, parties will take advantage of those opportunities.

What we ought to consider, in dealing with the next quarter century's proposals for procedural reforms, is whether it is possible to reverse this trend. We ought to pay more attention to whether new rules or their interpretation will have the effect of either streamlining or increasing the costs of litigation, and think hard about whether the system can bear additional procedural complexity. We ought to be trying to reduce the opportunities for wasteful and unnecessary motion practice. We should be trying to reduce the cost of discovery. We should be trying to create opportunities for litigants either to settle their disputes, or to try them expeditiously.

(photo from freedigitalphotos)

Read more...