Most of my professional life, I have been a civil litigator.  A necessary part of that practice has included representing clients in mediation.  I still remember my first mediation and how uncomfortable I felt in the opening session with EVERYONE in the room – the mediator, my boss, our client, the other party and the other lawyer.  I also remember feeling relieved when the mediator declared it time for the plaintiff and defendant to go into separate rooms.  I liked not having to stay with the other side, making small talk or sitting in silence.

I have embarked on a new chapter as a mediator and collaborative lawyer.  I have discovered to my amazement that there are mediations and collaborative law conferences designed to keep the parties together in the same room.  Yes, that is right – the same room.  If you are like me, this is a jarring thought.  Where is a good caucus when you need one?  You may be wondering why any rational person would think this is a good idea.  I have been pondering that very question and am beginning to understand why there may be some method to the madness.

A good place to begin thinking about the process of mediation is by considering its definition.  North Carolina law defines mediation as “an informal process conducted by a mediator with the objective of helping parties voluntarily settle their dispute.”  N.C. Gen. Stat. § 7A-38.1(b)(2). Webster’s Dictionary defines mediation as an “intercession or friendly intervention, usually by consent or invitation, for settling differences between persons, nations, etc.”  While the two definitions are similar, the statutory definition of “mediated settlement conference” highlights the practical differences of the process when a lawsuit has been filed.  A “mediated settlement conference” is “a pretrial, court-ordered conference of the parties to a civil action and their representatives conducted by a mediator.”  N.C. Gen. Stat. § 7A-38.1(b)(1) (Emphasis added).

The term mediation encompasses more than its more narrow application in the legal context (i.e., the mediated settlement conference).  Lawyers often think of the world in terms of lawsuits.  This is quite natural since our professional lives are consumed with them.  We are filing suits, defending them or drafting contracts and structuring deals to prevent or minimize their likelihood.  Because we see through a legal lens, we may think the process of mediation is synonymous with a “mediated settlement conference.”

In our court system, the process of mediation only involves disputes that have become lawsuits.  This also means that the parties usually have lawyers and often have no interest in having a relationship with each other once their lawsuit is resolved.  Moreover, Superior Court mediations are not by “consent or invitation” as described in Webster’s definition, unless you consider a court order to be a judge’s “invitation.”  If the parties, with the assistance of counsel, cannot resolve their differences, a judge or jury will impose a solution upon them.  That solution is almost always expressed in terms of dollars, whether or not that is really the plaintiff’s objective.

Without the confines of our legal system, the process of mediation may “open up.”  Let me give you an example.  I recently mediated an employment dispute – there was no lawsuit and there were no lawyers.  (I was actually a co-mediator but that is a discussion for another day.)  I knew beforehand that this mediation program was designed to keep the parties together during the conference.  I did not know what to expect and wondered what I might be walking into. The mediation lasted about two and a half hours during which time the parties and the mediators stayed together for all but about ten minutes.  To my surprise, the parties reached a settlement agreement.  Not only that, the grievant gained some valuable insight about how to better navigate his work life.  I truly believe that the employer and employee will have a better work experience and working relationship as a result of the mediation.  I had not expected the parties to learn something which would be useful beyond the day’s mediation.

The “same room” process worked here and I think I understand why:

1. The parties wanted to maintain and improve their relationship.  Both sides wanted the grievant/employee to keep his job but they needed to work through their current differences (as expressed in a performance evaluation).
2. The mediation process was truly voluntary.  There was no lawsuit and therefore no court order to mediate.
3. The parties had an opportunity to speak directly to each other.  Since there were no lawyers, the parties, with some assistance from the mediators, did most of the talking.

For mediated settlement conferences, I still support the school of thought espousing “separate rooms for separate parties.”  Once litigation is involved, the parties may no longer want or need to maintain a personal or professional relationship.  The mediation process is no longer truly voluntary as it is court-ordered.  Parties have to attend even though they may not want to.  Once a lawsuit is filed, parties usually speak through their lawyers.  And that might well be a good thing especially where the parties’ relationship is over or it exists only because of a painful event (think personal injury).  Separating the parties also allows each side to say what they truly think about the merits of the case and allows the mediator an opportunity to ask each side difficult questions.

It will probably take more face-to-face, shared room mediations to make me completely comfortable with the process.  I am also certain that I will be exposed to more of its challenges, difficulties and pitfalls.  As my working theory is revised, I will keep you posted.  And, hey, if I can get comfortable with same room mediations, won’t it make Superior Court mediations seem easier?

By Christie Foppiano