Introduction

Often, getting negotiations started is the most difficult step in resolving a dispute. Conventional mediation methods require the agreement of all sides to meet and talk. Modest though this "precondition" may sound in the abstract, accomplishing it is often an insurmountable task in actual practice. As a result, many cases which might otherwise be promising candidates for resolution through mediation never make it to the negotiating table. This essay discusses an alternative that does not require the parties' agreement to meet and talk. Rather, it simply requires that each party consent to be interviewed by the mediator. Accordingly, the term non-dialogic mediation, emphasizing that the parties do not meet and talk directly but, instead, communicate only with the mediator, at least initially.

Non-Dialogic Mediation: Agreeing to be Interviewed

Non-dialogic mediation derives its strength from the minimal demands it makes on the parties to "buy-in" to the process. No one need agree to meet and talk with his or her adversary. Yet, if everyone agrees to be interviewed by the mediator, a serious settlement initiative can begin. Its potential application is, therefore, enormous.

In the commercial mediation arena, by which I mean the mediation of complex civil litigation, the process described above typically unfolds along the following lines. In the simplest case, involving only two parties, one side, party A for example, will contact the mediator and indicate that settlement negotiations are stalled because his adversary, party B, is unwilling to participate in mediation. Party A does not wish the mediator to attempt to persuade party B to mediate since that would likely be futile, and might signal "weakness" on A's part. In this situation, rather than simply folding his arms and saying there is nothing to be done, the mediator can suggest another option. That option is for the mediator to contact each side and ask whether they would consent to be interviewed by the mediator. If both sides agree, meetings can be scheduled and the door to diplomacy opened, if only a crack, in a productive, non-threatening fashion and with minimal investment of resources. Even though the parties may completely distrust one another, if they can come to trust the mediator, as so often occurs in caucus (also a non-dialogic approach), a process of mediated dialog can be started. This form of mediated communication, while perhaps not optimal, may be the best, if not only, that is possible under the circumstances. The hope is that it will be "good enough", at least as a first step, to begin the settlement process.

During his initial confidential meeting with each side the mediator will mostly listen: to the parties, counsel and any others who are included in the initial interview. Questions may come up, of course, if the mediator feels some areas require further development in order for him to gain a useful understanding of the dispute. The parties may agree that they wish the mediator to convey to their adversary either their broad view of the case or some specific information. However seemingly unimportant, such communication(s) can serve in myriad ways as the basis for continuing to move the settlement process forward. After listening to all sides, the mediator should have some positive concrete suggestions to make regarding the next auspicious steps.

In a time when so much attention in mediation circles is focused on open, direct, and even "transformational" negotiation styles, I think it worthwhile to recognize that, at least in the field of commercial mediation, non-dialogic settlement tools and models are, in contrast, commonly employed and to some extent, at least, the norm. As previously alluded, the most obvious example of this is the use of caucusing. Caucusing and other non-dialogic tools are used, moreover, for good reason. In commercial mediation, settlement negotiations occur, by necessity, in the context of the larger legal system. Therefore, legal counsel must play an enormous role in conducting and shaping the negotiations. By the time a case arrives at the negotiating table, it has amassed its own, often rancorous, costly, history. Where each side wishes, understandably, to maximize its gain, whether through negotiations or trial, the same strategic considerations that shaped the litigation history of the case will impact the negotiation process. In these circumstances, adverse parties can safely say only "so much" directly to one another without compromising their bargaining positions. Through caucusing, a mediator can overcome the communication problems associated with this dynamic, i.e. misapprehension of settlement objectives, or impasse. In a similar fashion, the mediator can overcome the communication problems that cause impasse even before the negotiations have started by means of this simple, but extraordinarily powerful, non-dialogic interview process.

Conclusion

In the normal course of events, the process sketched-out in this essay leads either to direct settlement negotiations between counsel or conventional mediation. In either case, the parties' modest agreement to simply be interviewed by the mediator can serve as the nexus, or stepping-stone to settlement, often in unforeseen and unanticipated ways. The strength of non-dialogic mediation stems from the minimal "buy-in" demands it makes on the parties. Participants need only agree to be interviewed by the mediator. As a result, its potential application is enormous.