Corrections or additions?
This article by Bart Jackson was prepared for the June 13, 2001 edition of U.S. 1 Newspaper. All rights reserved.
Mediation: Better Results, Fewer Ruined Relations
It’s tempting to say “It’s not personal, it’s just
business,” but J.D. Rockefeller knew the real truth: All business
is always personal. “Know the man; then you’ll know his selling
price,” the tycoon would mutter to his cronies.
Nowadays, the stiff-necked businessman who backs up his commercial
relationships with a battery of attorneys frequently ends up paying
dearly and unnecessarily. Increasingly, business folk are seeking
not so much victory as solutions among people. Now in some cases facilitators
and mediators are providing firms with swifter, cheaper — and
often more farsighted — solutions to employee claims and business
disputes.
The fifth annual Alternative Dispute Resolution (ADR) Conference,
“Beyond the Basics: Strategies for Practitioners and Neutrals,”
on Friday, June 15, at 8:30 a.m. at the Sheraton in Iselin is an all-day
event for mediators, and for those who are interested in becoming
mediators. Sponsors include the New Jersey Association of Professional
Mediators, the Institute for Continuing Legal Education (ICLE), the
American Arbitration Association, the New Jersey State Bar Association,
and the Society of Certified Public Accountants. Cost: $210. Call
732-214-8500.
One thing making this ADR seminar so timely is the recent U.S. Supreme
Court decision concerning Circuit City. By a narrow 5 to 4 vote, the
court upheld that employees who previously agreed to the firm’s policy
of submitting claims to a binding arbitration process must abide by
the outcome. Claimants cannot run to court asking for a second bite
at the apple after binding arbitration (U.S. 1, May 16).
“Mediation has been the true sleeping giant for the past 20 years
and this undoubtedly will arouse it,” says seminar host and attorney
Hanan Isaacs. From his offices at 601 Ewing Street, Isaacs has
labored to ward off unnecessary litigation for two decades. Accredited
and active in both the American Arbitration Association and the Association
of Professional Mediators, as well as an adjunct professor of ADR
for Seton Hall Law School, Isaacs says “mediation is older than
written history.” When Agamemnon and Achilles arrived at an impasse
before the gates of ancient Troy, they took their case to wise old
Nestor. Such tribal counselor roots, Isaacs says, guide mediators
into humanizing a dispute. “Arbitration serves a definite purpose,
but it is still a win or lose situation,” Isaacs says. “It
can give you a single Pyrrhic victory at the cost of a potentially
profitable relationship.”
Even in a strong, straightforward dispute, Isaacs says mediation provides
a broader scope of methods. In a typical case, a buyer might complain:
“I’ve been cheated, you sold me a defective product and now won’t
stand behind your own junk.” The vendor might snarl back: “It
was not defective. If your clumsy oafs on the production line had
used it properly, it would have lasted for years.”
Amid these glowers and invectives enters the mediator. Mediators are
selected by agreement by both parties from among the New Jersey Association
of Professional Mediators’ 200 accredited members. They have a minimum
of 18 hours of training (the average is closer to 100) of training,
and have apprenticed with seasoned mediators.
The mediator can call upon a creative panoply of techniques not available
to a judge, and often not even to an arbiter. These techniques include:
Setting up a dispute system design. A frequent tool ofthe in-house facilitator or mediator is to have both sides write outsome basic rules of engagement. This pre-negotiation Geneva Conferencegenerates spokespeople and eases each side into working together.Rules might include that the initial brainstorming ideas must remainunfettered and uncriticized.Finding the goal. “Most important,” says Isaacs,”is to discover what each of the disputants really wants out ofthis relationship.” The buyer probably does not want to gain aswift and withering settlement that will kill the vendor as a futuresupplier. “Tell me how you guys first got started in businesstogether,” Isaacs may ask casually. Then, in an atmosphere ofrelaxed nostalgia, come the old stories and hopefully a realizationthat the true goal is to get rid of this bad blip and let the relationshipflow profitably on.Thus seeking the goal beyond the immediate dispute becomes primaryin employee claims, says Isaacs. So often the employee seeks a littlemore respect or recognition of his extra efforts. The cash from aquick fix settlement may temporarily symbolize that respect, but itwon’t solve the problem or fill the employee’s hidden need.Side caucusing with individuals. This technique providesa great advantage over formal litigation. While a judge is not permittedto speak with either client without attorneys for each side present,the mediator can meet with one side and quietly delve beneath thevarious layers and side issues of a dispute. “Family-held companiesare incredibly riddled with inner fractions and splits,” saysIsaacs. “Sometimes if I can spend five hours sewing up the riftbetween father and son co-owners, we can return and hammer out a solutionwith the original disputants in an hour.”Role Playing. Before you snigger, remember the maxim.All business is personal. If it opens doors of discovery in maritalcounseling, role playing can work just as well in arguments betweena buyer and a vendor, or an employer and his worker. “Get outof the box,” says Isaacs. “Seek that human solution.”Encouraging in-house facilitation. While it may soundlike training one’s self out of a job, a good mediator will aid thedisputants, particularly in employee/employer cases, to establisha set program for handling similar claims when they arise again.While mediating is all indoor work with no heavy lifting, itis in no way easy. Staying neutral, but becoming involved enough toactively seek a creative solution, requires a facile wit and a certaintemperament.John Linden, communications chair for the NJAPM, says “Iwill never forget standing in an office in Phillipsburg, and watchingthe mediator chasing one disputant down the hall and screaming atthe top of his lungs.” Apparently he was not quite the right manfor the job. But if you think you can work out a clever solution whilestaying aloof from the passions around you, mediating could be thecareer for you. You do not need to be an attorney, although many mediatorsare, and no license is necessary in New Jersey. Mediators do not needto be members of the Association of Professional Mediators, but thosewho do seek this group’s accreditation must have a minimum of 18 hoursof training — offered at Rutgers and other colleges, and mustserve an apprenticeship. Many members are attorneys or psychologists.Strong business experience, while considered very much of an asset,takes a second chair to exhaustive training for the APM Board.As more and more companies seek to avoid the cost of litigation, itjust might prove a wise move to catch the coat tails of the wakeningmediation giant. All you have to do is stick out your shingle andstart soothing. Good luck.— Bart JacksonPrevious StoryCorrections or additions?This page is published by PrincetonInfo.com— the web site for U.S. 1 Newspaper in Princeton, New Jersey.
