Jeff Trueman is a Maryland mediator who you may recall from my post, Jeff Trueman’s Study on Nightmares of “Positional” Tactics in Mediation. He is one of the people who responded to my request for people to describe how the Real Practice System checklists can be helpful. I said that people could write as little as a paragraph, and a bunch of people have done so. Jeff wrote a longer response, which he agreed to let me post separate from the analysis of the various responses I will write.
When I first started thinking about checklists in mediation, I was skeptical. On the one hand, I firmly believe that “good” mediation is more artful and improvisational than structured or pre-determined.
As a musician, I do not perform pursuant to a checklist. Having practiced rudiments, scales, etc., I have developed a musical vocabulary that enables me to interact with other musicians in the moment without thinking about how I’m doing it. Nonetheless, I may need a “checklist” in the form of a set list or notes to remind me of a song’s roadmap (i.e., breaks, dynamics, etc.).
Similarly, I realized I develop a mediation roadmap, or a plan, that includes a list of things I want to accomplish in a particular case and in my practice overall. So after reflecting on this, I realized that I use something like a checklist in every case!
Before mediation, I talk to the lawyers to understand the issues, but more importantly, who will participate. In wrongful death cases or when the allegations are highly sensitive, I meet with the parties before the mediation. Although I summarize the legal and factual issues, I also consider the likely settlement amount or range and how much I think the plaintiff will net after costs, liens, and attorney’s fees.
Most importantly, I form a plan, or strategy, that aims to move the parties from competition to some level of cooperation. I anticipate their concerns – usually how they can protect themselves if and when they make a bold move. I think about who might be willing to go first and how much they should demand or offer.
Even if you’re very good with people (i.e., listening to and acknowledging grief and pain, dashed expectations, betrayals, and hopes for a better tomorrow), you better have a good way of transitioning to numbers, otherwise the process will end in frustration and deeper convictions of how “bad” the folks are in the other room. I have learned this the hard way.
Recently, I started a journal where I document some thoughts after I complete a case, its interpersonal dynamic, and what I can do to improve. The Real Practice System checklists provide very helpful lists of things to consider in these self-assessments.
I cannot agree with John more that checklists in mediation depend on many contextual dynamics. Yes, the practice can be complex, but it is also simple – move people from competition to cooperation. Jujitsu is not complicated. Neither is music – unless you’re learning how to do it or trying to refine some aspect of it.
Even if you don’t write it down, your focus and intention to address some aspect of the mediation dynamic is a “to-do” item that can be broken into parts. And there you have a checklist.
