If there’s anything approaching unanimity in our field, it’s that it’s important to prepare in dispute resolution processes like mediation.
So it’s almost boring to write about it. But I found some things that should be interesting and helpful for parties, practitioners, and mediation program administrators.
Last December, I wrote a short article, The Critical Importance of Pre-Session Preparation in Mediation reacting to Roselle Wissler and Art Hinshaw’s excellent study, What Happens Before the First Mediation Session? An Empirical Study of Pre-Session Communications, and my analysis of ten mediators’ real mediation systems. These articles show that (1) preparation is really important, and (2) a substantial proportion of parties and mediators are not well-prepared before mediation sessions.
To be as well prepared as possible, parties need to understand their cases and the potential mediation procedures and to make some decisions well before mediation sessions begin. Whenever appropriate and feasible, it is desirable for parties to:
- participate in decision-making about choice of dispute resolution process
- get advice from lawyers and/or others
- exchange relevant information with their counterparts and the mediator
- learn about applicable law if relevant
- learn how the mediation process would work in their case
- identify and prioritize their goals in mediation
- anticipate their counterparts’ perspective
- consider the likely outcomes if the parties do not reach agreement, and/or
- plan possible mediation strategies
I decided to collect resources to help parties, attorneys, and mediators prepare for mediation. I looked at websites of a few federal district courts to find good materials, and this prompted me to analyze the websites of all the district courts. Although some websites provide clear, easily-accessible information to help parties prepare for mediation sessions, most do not.
My new article, How Can Courts – Practically for Free – Help Parties Prepare for Mediation Sessions?, is chock full of handy publications, videos, and court websites for parties, practitioners, and mediation program administrators in a 10-page appendix. Someone called it a “treasure trove.”
The article includes the language of praiseworthy court rules promoting preparation that courts and other organizations can use or adapt. The article cites provisions to help self-represented litigants manage the mediation process, and it highlights rules avoiding or limiting compulsion of parties to mediate.
This short “takeaways” piece highlights key points from the full article and identifies parts that you may be especially interested in. Reading the takeaways article may fully satisfy your interest in the full article – or it may whet your appetite to read all or parts of it. You may be particularly interested in the appendix.
Thanks to Russ Bleemer, the fabulous editor of CPR’s Alternatives magazine, it will run a two-part series this fall summarizing other aspects of the full article.
Building Real Practice Systems Theory
The article extends what I have called “real practice systems theory.” My recent article, Real Mediation Systems to Help Parties and Mediators Achieve Their Goals, demonstrates how individual mediators’ practice systems involve procedures before, during, and after mediation sessions, including routine procedures and strategies for dealing with challenging situations.
The new article shows that courts are complex dispute systems subject to the principles of dispute system design. The federal district court websites reveal the systemic nature of the courts, demonstrating how they do so much more than just trying cases. Indeed, trying cases is only a relatively small part of what they do. Much more of their workload entails providing information and services to various stakeholders and managing pretrial litigation. Mediation and other dispute resolution processes have become integral parts of the courts’ dispute systems.
Individual practitioners’ systems reflect their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and the cases in their mediations.
Similarly, the courts’ websites manifest the histories, values, goals, ideas, and general practices of stakeholders in their particular practice communities. They reflect categories of cases, parties, and behavior patterns that lead courts to design routine procedures and strategies for dealing with recurring challenges. In other words, they represent the courts’ dispute system designs. Court personnel including judges routinely do dispute system design, though they don’t generally call it that or identify as “dispute system designers.”
Practitioners’ individual practice systems are nested within the courts’ mediation systems, which influence practitioners’ behavior in their court-connected mediations and probably have spillover effects on their other work.
Take a look.