Using a Guiding Mediator to Help the Parties Design Bespoke Dispute Resolution Processes

The IMI/CCA/Strauss Institute Mixed Mode Taskforce have just published a series of articles on mixed mode dispute resolution in the New York Dispute Resolution Lawyer. These articles are reprinted with permission. The below article was produced by Working Group 2, and authored by Laura A Kaster and Jeremy Lack.

This article summarizes the work done by Working Group 2 of the task force set up by the International Mediation Institute (IMI), the Straus Institute at Pepperdine University (SI), and the College of Commercial Arbitrators (CCA). It starts by explaining the benefits of appointing a process facilitator/mediator early in disputes, and then discusses a range of practical tools, including a model clause, checklist and diagnostic metrics.

The Benefits of a Process Design Facilitator/Mediator

The core principle of the IMI/SI/CCA Task Force is the need for multiple lanes on a “highway to dispute resolution” to maximize speed, minimize costs, and take into consideration relationships and other factors important to the disputants. Flexibility of process choices, combinations, and sequences are key to the ultimate goal. And parties who are interested in changing lanes, going off-track, traveling through a new medium (e.g., negotiation, arbitration or mediation when they start of on a different path) or doing issue selection for different processes are likely to need guidance, particularly when they are already in dispute.

Who can provide such assistance? Who can help identify the specific issues to address, how to do so, and in what sequence or combination? Working Group 2 of the Mixed Mode Task Force focused on the use of a process facilitator, working as a mediator (to benefit from confidentiality), to help the disputants focus on, discuss, and choose procedural options as early as possible.

This “Guiding Mediator” helps the parties to determine their procedural needs and interests (e.g., budgets, time constraints, access to information, importance of preserving certain relationships, etc.) to help them design a bespoke process that can include adjudicative or evaluative elements as well as non-evaluative elements. Because of the privilege usually accorded to mediators, the Guiding Mediator’s communications and work product can remain confidential or immune from discovery to encourage early and frank exchange of the disputants’ needs and interests. The Guiding Mediator, as an architect of process design, can adapt to the disputants’ expressed preferences and suggest procedural options or stages that can better align with their needs and concerns.

By focusing on issues of process first, the parties can consider less tangible issues early on, such as personalities, cultures, loyalties and emotional reactions as well as concrete calculations such as fees, deadlines, the relief sought, and how to best implement a final outcome. No assumptions are made and there is less gamesmanship. The parties have greater scope to think about their procedural needs having been freed of their immediate focus on possible substantive outcomes and such concepts as “winning” or “losing.” Considering procedural needs and interests first and brainstorming procedural options together with the Guiding Mediator helps the disputants to “go to the balcony” earlier and build better “in-group” dynamics. Relationships