CAUCUS MEDIATION— PUTTING CONCILIATION BACK INTO THE PROCESS: THE PEACEMAKING APPROACH TO RESOLUTION, PEACE, AND HEALING

Manpower is all the people who are available to do a particular job or to work in a particular place. Population of working age except unemployed, disabled and non-working age. Labor divides on economically active population and economically inactive. First group includes employed and unemployed people and the second – unemployed disabled and retired workers.

Economically active population – is part of population that guarantees supply of labor. Level of EAP is calculated as ratio between share in the total economically active population to the total population. ( Leap=Seap/P)

Economically inactive population – population that not belongs to economically active population, including those under the age specified for measuring strength.

The process of reproduction of the labor force is divided into 3 phases:

- Phase formation (natural reproduction – birth of people and working achievements; restoration of the ability to work with existing employees – food, clothing, transport, communication; education and skills)

- Phase distribution and redistribution (distribution by type of work, according to sex, age, education)

- Phase of use (main problem – to provide employment and effective utilization of employees)

There are 2 types of reproduction of labor:

- Extensive – increase of manpower without changes in qualitative characteristics.

- Intensive – changes in quality

CAUCUS MEDIATION— PUTTING CONCILIATION BACK INTO THE PROCESS: THE PEACEMAKING APPROACH TO RESOLUTION, PEACE, AND HEALING

Richard M. Calkins*

Table of Contents

I. Introduction................................................................................. 102

II. Background on Mediation........................................................... 107

III. Mediation Formats....................................................................... 110

IV. The Reasons for the Success of Caucus Mediation..................... 113

V. Goals of Caucus Mediation......................................................... 125

VI. Format of Caucus Mediation....................................................... 125

A. Pre-Mediation Contacts.......................................................... 126

B. The Opening Joint Session..................................................... 126

1. The Mediator’s Opening Remarks.................................... 127

2. The Attorney’s Opening Statements.................................. 129

C. First Caucus........................................................................... 130

1. Goals of the First Caucus.................................................. 130

2. Format of the First Caucus................................................ 131

a. Strengths of the Case................................................... 131

b. Weaknesses of the Case.............................................. 132

c. Jury Verdict Range—Best Case/Worst Case................ 133

d. Settlement Discussions................................................ 134

e. New Demand or Offer................................................ 134

f. Insurance Coverage..................................................... 135

g. Subrogated Interests, Liens or Debts............................ 136

h. Costs of Litigation....................................................... 136

D. Subsequent Caucuses............................................................. 138

E. Final Joint Session................................................................. 140

F. Continuing the Mediation....................................................... 141

VII. Qualities of the Mediator/Peacemaker......................................... 142

A. Have the Aura of a Peacemaker............................................. 142

B. Be Patient............................................................................... 144

C. Be Positive............................................................................. 145

D. Be Persistent.......................................................................... 146

E. Be Perceptive......................................................................... 146

F. Be Sensitive........................................................................... 147

G. Be Friendly and Personable................................................... 149

H. Be Professional...................................................................... 149

I. Be Neutral.............................................................................. 149

J. Be Nonjudgmental................................................................. 151

K. Keep Confidentiality.............................................................. 153

L. Be Principled......................................................................... 153

VIII. Peacemaker Techniques to Resolve Disputes.............................. 154

A. The Art of Agreeing............................................................... 155

B. The Art of Disagreeing........................................................... 156

C. Be Actively Supportive.......................................................... 157

D. Show Interest in the Party and Counsel.................................. 157

E. Help Develop a Strategy........................................................ 158

F. Build a Team Concept........................................................... 158

G. Using Nonconfrontational Language...................................... 159

H. Be a Supportive Listener........................................................ 160

I. Eliciting an Apology and Forgiveness.................................... 160

IX. Conclusion.................................................................................. 161

I. Introduction

Much has been written concerning the difficulties encountered with the American legal system. Critics note the overcrowded courts, long delays, soaring costs, and great stressors both clients and attorneys face.[1] Indeed, in the early 1980s, Chief Justice Warren Burger observed that the American judicial system is too costly, too lengthy, too destructive, and too inefficient for a civilized people.[2] Justice Burger also noted the following:

One reason our courts have become overburdened is that Americans are increasingly turning to the courts for relief from a range of personal distresses and anxieties. Remedies for personal wrongs that once were considered the responsibility of institutions other than the courts are now boldly asserted as legal “entitlements.” The courts have been expected to fill the void created by the decline of church, family, and neighborhood unity.[3]

There are a number of reasons why our legal system is being overtaxed, and in many instances not fulfilling the high ideals envisioned by our forefathers over two hundred years ago. First, there is “[a]n explosive increase in the number of lawsuits being filed in this country each year (over 18 million)” which has caused legal gridlock “in many court systems, particularly in the highly industrialized areas of the nation.”[4] Second, many new and novel causes of action “have resulted in a proliferation of claims not previously recognized in courts of law.”[5] Third, there has been “[a] proliferation of statutory enactments as well as regulatory promulgations that have increased the case load in the courts.”[6] Fourth, “escalating costs of litigation caused by unlimited discovery forays and motions before the court” are absorbing greater amounts of courts’ time and energy to the detriment of hearing cases for trial.[7] Fifth, “[t]he unpredictability and volatility of jury awards” has created great uncertainty and disruption in the business and insurance communities.[8] And, sixth, “serious proliferation of criminal cases, particularly drug related, which have over taxed the court system, sometimes bringing civil cases to a virtual standstill has also contributed.”[9]

It is not uncommon for lawsuits, burdened with discovery and multiple appeals, to take ten or even twenty years before being resolved. One lawsuit, In re Midwest Milk Monopolization Litigation,[10] involved numerous court rulings and two appeals to the Eighth Circuit Court of Appeals. It was in its twenty-first year with an anticipated three more years when it was settled through mediation.[11] In another antitrust case, a reported $40 million was spent in pretrial discovery, and it was anticipated that it would require $100,000 a day in trial costs for a two-month trial, when the case was eventually mediated successfully.[12]

However, the price paid in long delays, high costs, and inefficiency pales in comparison to the human price paid in the stress suffered by clients and lawyers alike in the courts. As a trial lawyer and later mediator, I personally recall two fatal heart attacks and a suicide directly related to litigation. The subject matter in two of those cases was business related. There is perhaps no more debilitating and demeaning of an experience than to be cross-examined by a skilled attorney. More than one person has faced depression and other health problems after the experience. The highly charged adversarial system we know today has victimized many, especially in divorce court.

The question is then: Is there a better way to resolution? Of course, the answer is in the affirmative. Nearly 150 years ago, Abraham Lincoln gave this sage counsel: “Persuade your neighbor to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time.”[13]

Trying a dispute in the courtroom is the most expensive, time consuming, and stressful way to resolution. Any form of Alternative Dispute Resolution (ADR) will cost less, be more quickly and conveniently implemented, and be less stressful on the parties and counsel. Keeping the parties out of the courtroom and thinking in terms of less formal methods of resolution provides an atmosphere less adversarial and more conducive to ongoing communication and cooperation.

It is the primary thesis of this Article, however, that merely resolving a dispute through ADR is not sufficient. ADR can be quite adversarial, for example, when the mediator takes on the role of devil’s advocate. Instead, this Article explains a newer methodology which discards the adversarial tools of the lawyer and incorporates the nonconfrontational tools of the peacemaker. The goal is not simply resolution, but finding a sense of peace and, indeed, healing.

The Article examines caucus mediation[14] and the reasons for its extraordinary success. It next discusses the role of the peacemaker in the process and the qualities required to wear the mantle of peacemaker. Finally, it surveys the nonadversarial and nonconfrontational tools at the disposal of the peacemaker.

II. Background on Mediation

Mediation long predates western civil law.[15] It has its origin in Eastern Asia, which viewed mediation as superior to recourse to the law for the resolution of disputes.[16] Today, both China and Japan place emphasis on a conciliatory approach to conflict resolution rather than an adversarial approach as used in most western societies.[17] In Japan, a conciliatory relationship between disputants is the foundation to resolving differences. [18] In any dispute, time is first spent building that relationship, without which a final agreement cannot be reached.

Any number of societies have traditionally considered mediation the favored process for dispute resolution.[19] The Society of Friends wrote a book that stated that when differences arise between persons, their friends shall “forthwith speak to and tenderly advise, the persons between whom the difference is, to make a speedy end thereof; and if that friend or those friends do not comply with their advice, that then they take to them one or two friends more, and again exhort them to end their difference.”[20]

In the American colonies, emphasis was placed on communal peace and harmony between parties.[21] The growth of commerce and industry, however, resulted in more complex dealings and a greater sense of competition rather than cooperation.[22] Litigation then began to play a greater role in the resolution of disputes, and the impetus for conciliation was lost.[23]

In the last fifteen to twenty years, there has been a dramatic revival in the United States of ADR and, in particular, mediation.[24] A number of states require the parties to mediate before going to trial.[25]

III. Mediation Formats

There are a number of mediation formats used by mediators. What they have in common is that they are all nonbinding and if settlement is not reached, the parties can always go to trial or utilize some other ADR mechanism, such as arbitration. The two general categories of mediation are adversarial mediation, in which the mediator is in an adversary position to the parties and counsel, and peacemaker mediation, in which the mediator seeks to reconcile the parties and does not confront them but remains supportive and conciliatory.

In adversarial mediation, the mediator, most often a former judge, confronts the parties and seeks to reach settlement through intimidation, pressure, and often threats, if necessary. She sets a settlement figure and tries to force both sides to accept it. As one scholar notes, it is perfectly proper for her to use deception and illusion to reach a settlement.[26] This approach is highly confrontational and stressful, and although successful, albeit at a lower success rate, it leaves the parties with a feeling that they were abused rather than fulfilled. Indeed, this adversarial and confrontational approach simply mirrors what a party must face in the courtroom. Therefore, it has the same disadvantages: first, although settlement may be reached, the parties are so injured that they will not mediate again; second, such a process is void of any opportunity to establish peace between the parties and healing where needed; and third, rarely can anything more than a monetary resolution be reached.

Peacemaker mediation, on the other hand, involves a conscious effort by the mediator to be supportive of both sides and still the storm of anger and frustration. Through compassion and understanding, the mediator guides the parties to a meaningful settlement, which establishes a foundation for peace and even healing. It creates the very best atmosphere for creative thinking and resolution. It reincorporates the lost element of conciliation back into the process.

Within these two categories, there are three primary formats utilized today: trial, conference, and caucus.[27] The trial format, also known as nonbinding arbitration, is conducted by a single hearing officer or a panel of three persons.[28] Counsel for the parties argue their cases and a nonbinding award is made.[29]

Conference mediation, which is quite effective and preferred in family and employment disputes, keeps the parties together at the conference table.[30] The mediator acts as a “referee” and helps the parties reach a meaningful resolution. A form of conference mediation is transformative mediation.[31]

Caucus mediation, which is described in some detail in the remainder of this Article, begins with all the parties together in conference. The mediator makes opening remarks, and the attorneys are invited to make opening statements. After this is completed, the parties are separated and placed in different rooms. The mediator then shuttles back and forth between them and conducts private sessions called “caucuses.” This caucusing continues until the case is settled. Once completed, the parties meet again in a joint conference and affirm the terms of the settlement, or, if the case is not settled, whether the process is to continue by telephone or otherwise.[32]

Mediators play different roles depending upon the mediation format utilized and the needs of the parties. Mediators, if requested, can be evaluative and inform the parties what they feel the case is worth. This is the role the mediator plays in the trial format, such as in Michigan.[33] Although less frequent, the mediator utilizing the caucus format might also be requested to be evaluative.[34] More generally, however, the mediator in both conference and caucus mediations remains nonjudgmental and allows the parties to evaluate the case and reach their own conclusions. In this role, the mediator is a “facilitator” and assists the parties in their evaluation.[35]

Date: 2015-01-02; view: 799