The myths shrouding mediation are manifold. Two parties square off in a room bristling with anger, loathing each other, sick of the argument that sparked their feud. Then the mediator steps in. Armed with nothing but a few precious pearls of wisdom, he transforms the room. Joyously the contending parties shake hands and, without the egregious costs of court and attorneys, they quickly reach a settlement. Let’s get real.
No mystical gift or soothing personage hammers out agreements. Mediating successfully between two contending parties takes skill, psychology, a cool head, and a whole bundle of techniques garnered over the years. To help those considering a mediation career, and those already in it, the New Jersey Institute of Continuing Legal Education offers a “Mediation Workshop” on Tuesday, February 28, at 5 p.m. at the Clarion Hotel in Edison. Cost: $189. Visit www.NJICLE.com to register.
Covering many of the more advanced mediation techniques, this course features the Honorable William Dreier, former presiding judge of the Superior Court of New Jersey, Appellate Division; Robert Margulies, past chairman of the New Jersey Small Business Administration Dispute Resolution System; and attorney Russell M. Woods of Cranford-based law firm Woods & Trembulak.
While the art of mediation involves no magic, some seem to have the magic touch. Since l998, when Judge Dreier stepped down from a quarter century on the bench, he has maintained an astounding 97 percent successful settlement rate as a mediator. Part of this success may be due to a long family immersion in New Jersey business, part can be credited to a lifetime of legal experience. But probably the greatest factor is Dreier’s personal dedication to public service.
In l861 Dreier’s Sporting Goods opened its doors in Plainfield, and stood as a town fixture all through Dreier’s youth, while his father, and then his uncle, managed it. After earning a B.S. from M.I.T. in business and engineering administration in l958, Dreier took his law degree at Columbia and returned to his hometown to practice. Joining the small firm of McKensey, Welsh and Dreier, he became a local banking lawyer and city attorney. He served on the Plainfield town council while he was still in his 20s. “That was the early sixties — the time of the Plainfield riots,” Dreier recalls. “It took every ounce of skill and tact to put out the fires that kept cropping up.”
By age 35, Dreier became the youngest judge in the New Jersey. “Even then the job meant a 50 percent cut in income,” he says. After a full career of 25 years on the bench, Dreier “retired” to a full-time position with Norris, McLaughlin and Marcus in Bridgewater. In addition to helping private clients, he acts as both an arbitrator and mediator.
Time and money have sent Americans scurrying to arbitrators and mediators in exploding numbers. In l995 the American Arbitration Association recorded 62,000 cases that had been either mediated or arbitrated. In 2005 the number was up to 140,000 cases. (Only 15,000 of these were labor-management quarrels.) Reasons for the increase could include ballooning legal fees and the extensive delays that occur as a case winds its way through the courts.
“The courts are welcoming the relief mediation means for their calendars,” says Dreier. On January l9 the New Jersey passed the Uniform Mediation Act. In addition to clarifying several mediation standards, this law protects against disclosures of any aspect of an alternative dispute resolution. Mediators are prohibited from testifying about their cases. Margulies says that “I think this demonstrates how much the courts understand that mediation is a different process.”
Yet despite the new protections, Dreier finds the mediator’s lot is a very challenging one.
Feeling powerless. “The most difficult thing for a mediator to learn,” says Dreier, “is that he is not judging anything — in fact, he does not make any decisions for anyone.” Instead, the mediator simply facilitates. When two parties are arguing over a fair price, he does not set the figure. He takes the much more difficult road of nudging each and letting them choose an agreeable price.
“For judges and attorneys, this facilitator role is often a real shock,” says Dreier. “When you’ve spent years of taking charge and handing down solutions, it is difficult to take this more hands-off stance.”
Proffering catharsis. Right from the outset, Dreier’s technique is to have each party vent its whole story, back from the beginning. “These people have been stewing about this issue, and living with it day and night,” he says. “What they most need when they walk in that door is to get it all off their chest.” He encourages the parties to tell their tale in the style of a full explanation of events, not an opening argument.
For the contenders, this telling usually affords some emotional relief. For the mediator it provides the first clues to his next step.
Figuring out the heart of the problem. Once the air is cleared, and the initial bones of contention are laid bare, Dreier tries to distill the prime interest of each party. He seeks to infer exactly what it is that they most want out of this settlement. It is surprising how frequently employees want only an apology and a good letter of reference. Too often employers, seeing only a threat to their bottom line, ignore this basic, human solution.
In contract disputes, Dreier often discovers that amidst all the quibbling over numbers, all one party wants is to get out of the situation with his credit intact ASAP. “When you can finally infer and establish that prime principle of each party, it puts you well on the road towards settlement,” says Dreier.
Walking an ethical tightrope. While now an official statute under the Uniform Mediations Act, the concept of never disclosing any aspect of a case has long been common law and a binding code among all mediators. Even in matters concerning settlements reached years ago, mediators will never reveal names, the contents of documents, or spoken testimony.
More difficult than this code of silence is the rule of no present or future fraternization with clients. More than one misguided attorney has tried to use the mediation process as a job interview with one party — or even both. This is regarded in the trade as a particularly bad way to fish.
As the numbers of people seeking some alternative dispute resolution climbs, so does the need for qualified mediators. In addition to those in the legal system, many mediators are drawn from the ranks of accountants, psychologists, and business people who are highly qualified in a specific field. Dreier suggests it as a nice semi-retirement career. Descriptions and qualifications can be obtained by contacting the Professional Mediation Association at www.promediaton.com.