MEDIATION: BETTER RESULTS, FEWER RUINED RELATIONS

This article by Bart Jackson was prepared for the June 13, 2001 edition of U.S. 1 Newspaper. All rights reserved.

It's tempting to say "It's not personal, it's just business," but J.D. Rockefeller knew the real truth: All business is always personal. "Know the man; then you'll know his selling price," the tycoon would mutter to his cronies.

Nowadays, the stiff-necked businessman who backs up his commercial relationships with a battery of attorneys frequently ends up paying dearly and unnecessarily. Increasingly, business folk are seeking not so much victory as solutions among people. Now in some cases facilitators and mediators are providing firms with swifter, cheaper -- and often more farsighted -- solutions to employee claims and business disputes.

The fifth annual Alternative Dispute Resolution (ADR) Conference, "Beyond the Basics: Strategies for Practitioners and Neutrals," on Friday, June 15, at 8:30 a.m. at the Sheraton in Iselin is an all-day event for mediators, and for those who are interested in becoming mediators. Sponsors include the New Jersey Association of Professional Mediators, the Institute for Continuing Legal Education (ICLE), the American Arbitration Association, the New Jersey State Bar Association, and the Society of Certified Public Accountants. Cost: $210. Call 732-214-8500.

One thing making this ADR seminar so timely is the recent U.S. Supreme Court decision concerning Circuit City. By a narrow 5 to 4 vote, the court upheld that employees who previously agreed to the firm's policy of submitting claims to a binding arbitration process must abide by the outcome. Claimants cannot run to court asking for a second bite at the apple after binding arbitration (U.S. 1, May 16).

"Mediation has been the true sleeping giant for the past 20 years and this undoubtedly will arouse it," says seminar host and attorney Hanan Isaacs. From his offices at 601 Ewing Street, Isaacs has labored to ward off unnecessary litigation for two decades. Accredited and active in both the American Arbitration Association and the Association of Professional Mediators, as well as an adjunct professor of ADR for Seton Hall Law School, Isaacs says "mediation is older than written history." When Agamemnon and Achilles arrived at an impasse before the gates of ancient Troy, they took their case to wise old Nestor. Such tribal counselor roots, Isaacs says, guide mediators into humanizing a dispute. "Arbitration serves a definite purpose, but it is still a win or lose situation," Isaacs says. "It can give you a single Pyrrhic victory at the cost of a potentially profitable relationship."

Even in a strong, straightforward dispute, Isaacs says mediation provides a broader scope of methods. In a typical case, a buyer might complain: "I've been cheated, you sold me a defective product and now won't stand behind your own junk." The vendor might snarl back: "It was not defective. If your clumsy oafs on the production line had used it properly, it would have lasted for years."

Amid these glowers and invectives enters the mediator. Mediators are selected by agreement by both parties from among the New Jersey Association of Professional Mediators' 200 accredited members. They have a minimum of 18 hours of training (the average is closer to 100), and have apprenticed with seasoned mediators.

The mediator can call upon a creative panoply of techniques not available to a judge, and often not even to an arbiter. These techniques include:

Setting up a dispute system design. A frequent tool of the in-house facilitator or mediator is to have both sides write out some basic rules of engagement. This pre-negotiation Geneva Conference generates spokespeople and eases each side into working together. Rules might include that the initial brainstorming ideas must remain unfettered and uncriticized.

Finding the goal. "Most important," says Isaacs, "is to discover what each of the disputants really wants out of this relationship." The buyer probably does not want to gain a swift and withering settlement that will kill the vendor as a future supplier. "Tell me how you guys first got started in business together," Isaacs may ask casually. Then, in an atmosphere of relaxed nostalgia, come the old stories and hopefully a realization that the true goal is to get rid of this bad blip and let the relationship flow profitably on.
Thus seeking the goal beyond the immediate dispute becomes primary in employee claims, says Isaacs. So often the employee seeks a little more respect or recognition of his extra efforts. The cash from a quick fix settlement may temporarily symbolize that respect, but it won't solve the problem or fill the employee's hidden need.

Side caucusing with individuals. This technique provides a great advantage over formal litigation. While a judge is not permitted to speak with either client without attorneys for each side present, the mediator can meet with one side and quietly delve beneath the various layers and side issues of a dispute. "Family-held companies are incredibly riddled with inner fractions and splits," says Isaacs. "Sometimes if I can spend five hours sewing up the rift between father and son co-owners, we can return and hammer out a solution with the original disputants in an hour."

Role Playing. Before you snigger, remember the maxim. All business is personal. If it opens doors of discovery in marital counseling, role playing can work just as well in arguments between a buyer and a vendor, or an employer and his worker. "Get out of the box," says Isaacs. "Seek that human solution."

Encouraging in-house facilitation. While it may sound like training one's self out of a job, a good mediator will aid the disputants, particularly in employee/employer cases, to establish a set program for handling similar claims when they arise again.

While mediating is all indoor work with no heavy lifting, it is in no way easy. Staying neutral, but becoming involved enough to actively seek a creative solution, requires a facile wit and a certain temperament.
John Linden, communications chair for the NJAPM, says "I will never forget standing in an office in Phillipsburg, and watching the mediator chasing one disputant down the hall and screaming at the top of his lungs." Apparently he was not quite the right man for the job. But if you think you can work out a clever solution while staying aloof from the passions around you, mediating could be the career for you. You do not need to be an attorney, although many mediators are, and no license is necessary in New Jersey. Mediators do not need to be members of the Association of Professional Mediators, but those who do seek this group's accreditation must have a minimum of 18 hours of training -- offered at Rutgers and other colleges, and must serve an apprenticeship. Many members are attorneys or psychologists. Strong business experience, while considered very much of an asset, takes a second chair to exhaustive training for the APM Board.

As more and more companies seek to avoid the cost of litigation, it just might prove a wise move to catch the coat tails of the wakening mediation giant. All you have to do is stick out your shingle and start soothing. Good luck.

-- Bart Jackson