Mediation is often known as the creative, more fluid option along the dispute resolution spectrum. Where arbitration is guided by rules, the mediation process is generally open for the parties and mediator to design on a case by case basis.
Despite this relatively free form approach to resolving disputes, I have found that some structure assists in helping parties create the best process for finding solutions. Thus, I have adopted a project management approach to mediation practice, somewhat similar to the systems I created to manage arbitration (as referenced here, here, and here).
In arbitration, we are guided by process goals of protecting the fairness, efficiency and economy of the proceedings. While these are also important precepts in mediation, mediation also allows for a bit more creativity when it comes to process design. As such, project management tools are an ideal aid to the mediator and parties in constructing a negotiation process that is sensitive to their needs.
The following is an outline of how project management tools can come into play in mediation to ensure progress throughout the mediation event.
As an initial matter, let's define some key terms:
A “project” is a unique effort to accomplish a goal, or set of goals.
“Project management” deploys specific methodologies, knowledge, skills and experience to ensure the project achieves those goals.
There are a number of parallels between a mediation and a project. Both are unique: no two mediations, nor projects, are alike. Both are undertaken to develop solutions. Both involve expectations for successful outcomes. And in both scenarios, it is helpful to deploy specific tools to help ensure successful outcomes. This involves development of a project charter and schedule, risk management plans, and a communications protocol.
Here is a summary of the stages involved in project management, as applied to mediation, along with examples of how the parties and the mediator can utilize project management to promote an efficient and cost effective endeavor.
The first stage of project management is initiation, where project feasibility is assessed.
What is the purpose of the project?
What resources will it require?
In mediation, this step often occurs before the mediator is appointed. Here, parties make the determination that they need assistance in crafting a solution to their problem, and that a neutral voice is needed to facilitate that discussion.
This is where a negotiation plan should be created. For our purposes, the negotiation plan is similar to a project charter, which outlines the project’s purpose, measurable objectives, assumptions, risks, constraints, schedule and budget.
At the initiation stage, a negotiation plan might include the following components, which will help to determine whether mediation is a viable option. This is essentially the business case for mediating a specific dispute.
Purpose: This component provides clarity on whether the project is needed, or in our case, whether mediation is a feasible option for resolving the dispute. Here, it is important to list out the specific goals of the the mediation event – whether relating to financial, relational, or other factors that may contribute to a solution.
Risks: Mediation may not be a risk-free endeavor, so potential risks to your own interests must be assessed. For example,
What is your BATNA (Best Alternative to a Negotiated Agreement)– if the case does not resolve through mediation, where will you be?
Are there any other risks in engaging your counter-party in private negotiations?
Will you be able to agree on a mediator?
Assumptions: Do you truly understand your counterpart’s interests? Do you have a realistic understanding of their goals in a negotiation?
Constraints: Access to information and/or decision makers, limitations on authority to negotiate, insurance concerns, or the potential for third party involvement are all examples of constraints that might arise in your mediation. Are they insurmountable? Or would a competent mediator be able to provide the support you need in overcoming these hurdles?
Schedule: Specify the time frame within which you would like to agree on a mediator with the counter-party and a deadline for concluding the mediation.
Budget: This can include an assessment of the legal, expert and mediator fees proportionate to the amount in controversy (or other important factors), along with any other internal expenditures of employee time that may be required of the mediation project.
The planning phase in mediation begins with the appointment of the mediator. At this juncture, the mediator should make time to speak with all parties individually to understand the negotiation history and respective goals for the mediation process. Once the mediator has conducted initial interviews, she can utilize the following project management path when convening the parties for pre-mediation planning, which will assist the parties in developing a bespoke and efficient mediation meeting.
1. Setting CLEAR Goals with the parties for the manner in which the mediation will be conducted:
Collaborative: Ensure that communications will focus more on the collaborative. Combative negotiation techniques are often natural but tend to delay or derail the progress of mediation.
Limited in Scope: The issues to be mediated must be agreed upon before the session; scope creep in negotiation is common but, again, can detract from progress.
Emotional: Parties are often closely identified with the positions they have assumed. This can result in heightened emotional responses to those who might not share those sentiments. Emotion is natural and should be invited to the negotiation, and addressed in a proactive manner with the mediator’s assistance.
Appreciable: Each side's idea of success, and how to measure it, will surely differ. Acknowledging how to know when success is achieved will assist in structuring the process and staying focused on what's important.
Refinable: Accept and reinforce that the process will, and must, evolve over the course of its life.
2. Assess process design needs:
Submissions: Depending on the complexity of the dispute and party appetite for briefing, mediation statement may – or in the interests of efficiency may not - need to be submitted to the mediator.
Information exchange: The mediator should work with the parties to understand any information gaps between them and take steps to mend that gap before the session begins.
Joint session: Prior to mediation, a decision must be made as to whether to embrace or avoid the joint session. The former is usually the best path for creating a project team environment, so long as the parties approach that discussion following the CLEAR goals, outlined above. Ideally, the joint session should be utilized as an opportunity for setting ground rules for the day, clearing the decks and committing to a good faith process.
The third phase involves the actual in-person or online mediation session. In a traditional project management system, this is where teams are formed to focus on various work streams, resources are assigned, and regular check-in meetings are held to gauge the progress of the project.
Mediation is a ready-made project in this regard; it comes with teams and resource allocation already addressed. All that is left for the mediator to do is to allocate the work in a way that is fair and thoughtful, while encouraging the progress of negotiations.
Work assignments in the mediation project often come as a two-way street in the individual caucus meetings. After joint session, when the parties separate to meet independently and in confidential sessions with the mediator, the mediator should come prepared with a list of questions and perhaps research assignments for the parties to undertake. Likewise, parties should prepare their own instructions for the mediator.
It is the responsibility of the mediator to ensure that the mediation remains on track and that negotiations are progressing towards the process goals. Key Performance Indicators (KPIs) that come into play here are:
Schedule: While few people enter mediation with a specific agenda for the event – it is usually too fluid for such structure – the mediator should monitor negotiations to assess progress and course correct where there is impasse.
Risk: Likewise, the mediator must be sensitive to party exhaustion with the process. Negotiation, and often productive negotiation, can be quite vexing. To the extent the mediator sees signs that good faith, concerted negotiations are at risk, they must be immediately identified and managed to ensure the continued success of the mediation project.
Resource Allocation: There are times when one party demands more of the mediator, running the risk of over-allocating her time to one side over the other. Further, one side may be more motivated to negotiate or actively participate in the dialogue. As with the prior KPI’s, such behavior must be identified and managed immediately.
Quality assessment: Remembering each side’s goals for the discussion, the mediator should reflect on how much progress has been made in bridging those gaps – repeatedly throughout the mediation.
The final stage represents the completed mediation project. Either the case settled or it did not. Either way, the mediator should reconvene those parties to the mediation to conduct a brief review. In instances where the case settled, this is helpful in memorializing the parties’ agreement. But it is also important where the case did not settle – to remind the parties of the progress that was made, the issues that remain and the path ahead for continuing negotiation.
Incorporating project management tools into mediation practice has the benefit of focusing party and mediator efforts not only on crafting solution, but doing so in a way that is specifically tailored to the parties’ requirements – while maintaining consistent focus on process efficiency.