ZOPA SCHMOPA
A few days ago I posted a hypothetical question about whether a mediator, after having learned (in confidence) both sides’ reservations points and concluding that no zone of possible agreement (ZOPA) exists, could the mediator tell the parties that mediation will be fruitless and end the process?
B’s answer is correct:
yes, with advance permission from the parties that caucusing could be used to determine whether there was a ZOPA, and, keeping all other details confidential, report back to them on that determination.
But, there’s a bit of analysis missing. Sorry, B, you only get partial credit. Remember, the job is to show that you can turn a simple yes/no question into hundreds of hours of billable work.
For those of you who are curious, the reason the mediator can’t tell the parties mediation would be fruitless is that doing so would reveal some bit of confidential information, namely that the other side’s reservation point lies beyond your reservation point. She isn’t saying what the reservation points are, but she is still giving up confidential information which she is not allowed to do.
Likewise, a mediator should not encourage the parties to proceed with mediation, because doing so may reveal (or at least appear to reveal) information about the ZOPA. Basically, the mediator should do nothing but keep the parties civil, and should not encourage any agreement. Too bad that’s not how they actually train mediators.
It only takes about 40 hours to be decently well-trained in the rules of mediation. You just need practice and the right disposition to be good at it.
I believe the problem is the attorneys who have represented parties in several mediation sessions, maybe attended a CLE on mediation, and on the basis of that experience think they can set up their own shingle. Then there’s the well-established judge-arbitrator types who think their knowledge and appreciation of football makes them experts on the ballet.
40 hours to learn the rules? Maybe 40 minutes, though it might take 40 hours of training to develop the skills. The rules are pretty simple. Learning to deal with people in heated conflicts is not.
My issue with how a lot of mediators work is that they go in to it wanting the parties to reach an agreement. But, that assumes a lot about the merits of the case and how reasonable the parties are. If one side has shit for merits or is taking an unreasonable position, an settlement could be a terrible outcome. It should be up to the parties to decide whether any settlement at all is the right decision, not the mediator.
The main role of a mediator should be to facilitate communication (basically keep everyone civil) and to make sure the parties are analyzing their positions correctly (such as making a correct calculation about the value of the case based on the likely outcome, and factoring in attorney’s fees).