MWI College and University Mediation News - Volume 1 Number 2

In this Issue:

• Welcome and Introduction

• An Interview with Judith Malone, General Counsel of Bentley University

• Article: Preparing for a Successful Mediation

• About MWI's College and University Mediation Services

An Interview with Judith Malone, General Counsel of Bentley College

Judith Malone was appointed General Counsel of Bentley University in March, 2008.  Prior to that, Judy was a partner in Edwards Angell Palmer & Dodge, where she practiced labor and employment law and litigation, with an emphasis on colleges and universities.  She has a B.S. in sociology, magna cum laude, from the University of Massachusetts, Amherst, and a J.D., magna cum laude, from Boston College Law School, where she was articles editor of the law review.

Q.  I’m pleased to see you again, Judy.  You encouraged me early on, so I’m doubly grateful for this interview.  I’d like to ask you some questions about mediation and negotiation.

A.  I’m happy to do it.

Q.  Let’s start with mediation.  Have you been involved in mediation as a party? 

A.  Yes, many times.

Q.  Could you tell us about your most satisfying experience?

A.  The cases that are most satisfying are not just about dollars.  In private practice, I represented defendants, and the cases involved plaintiffs who felt truly, truly wronged, where they felt a deep connection to the institution.   At the end of the mediation, apart from the resolution of monetary issues, you felt the breach was really healed.

Q.  An example?

A.  I had several cases in which students felt mistreated in some way, sometimes for things that had happened years before.  But even in cases where the institution had a very good Statute of Limitations argument, the complaint was treated very seriously.  They wanted former students to feel that they still had a connection.

I especially remember one case.  At the end of the mediation, the student and the Chairman of the Board hugged.  They really felt that each had dealt fairly with the other.

Q.  Not all mediations end that way.

A.  For a mediation to be successful, there are a number of requirements.  First and foremost, both parties have to want to reach resolution.  Parties often say they do, but sometimes they don’t.

Also, in practice I was always reluctant to do a mediation if the plaintiff required that some dollars be on the table before the mediation began or if my client, the employer, was asked to bear the full cost of the mediation.  Both sides have to have some stake in the mediation.  Otherwise they may just be taking a flier, thinking, “If I don’t like the number, I’ll walk away.  I won’t have lost anything.”

Q.  What else?

A.  Sometimes mediation can be done too early, where the case has not been fleshed out particularly well.

Q.  You talked about parties who didn’t necessarily come to a mediation in good faith.  I used to think that parties routinely lied – and sometimes they do – but most often both are telling the truth.  They just have their own version of it.

A.  Oh, there’s no question.  The one thing you realize is the fallibility of human memory and our ability to perceive accurately.  People do make things up, but I think more times people tend to believe the reality they want to exist.  Anyone who has a teenager knows.  You think you’ve communicated one thing, and they think you’ve communicated something else.

Q.  What conflicts would you consider for mediation?

A.  The usual.  Any kind of litigation, but mediation can also be used before there is a case or even when no case is in the offing.

When I was in private practice, we had a dispute between the head of an organization and one of his v.p.’s.  It wasn’t so much dealing with a performance issue as how could we help these people work together.  The CEO was fairly new, and he wanted to see if he could make it work.

Q.  Did it?

A.  Yes, the mediation allowed us to come up with a framework within which the parties could work and a process for resolving differences.

Q.  Does Bentley have a formal dispute resolution process?

A.  Three.  We have different tracks for faculty, staff, and students.  We don’t have a lot of grievances.

Q.  Apparently what you do works pretty well.  There must be good people here, particularly a great General Counsel.

A.  Absolutely!

Q.  Let’s talk about negotiation.  If it’s principally financial, do you go in with a goal?

A.  I do, but you have to hear what the other side has to say, and you have to keep an open mind.

Q.  I’ve been in mediations where the attorney gave the client a goal, and the client got locked into it and resisted giving it up, even when it made sense to.

A.  The problem is setting expectations…on both sides.  When I started out in practice, I was with a firm that did a lot of labor negotiations.  My mentor always said that a good deal is one that neither side is completely happy with, and I think that’s true.

Q.   Can I give you a couple of hypotheticals?  Let’s say you are in a negotiation and your counterpart says, “Here’s what I want, or I’m out the door.”

A.  I don’t think you have to take somebody at face value.  If that happens, I can say, well, X is going to be tough for us, but let me tell you why Y would be a good deal for you.  And if they don’t want to talk, the good thing is, it’s not necessarily over.

I’ve been faced with plaintiffs who thought they had incredibly strong cases, where they walked away from a significant offer and then ended up settling the case in the middle of the trial for a fraction of what they had been offered.  There are risks on both sides.

Q.  Last hypothetical.  What if you have completed a negotiation, everything locked in to the last jot and tittle.  It’s done.  And then, trying to squeeze you, your counterpart says, “Oh, by the way, we want you to pay for the entire mediation.”

A.  My response to that is that you should have brought that up at the appropriate time.  Is it more important to you than something we’ve already agreed to?  If you want to, we can open that door, but my client negotiated in good faith and thought that was it.

Q.  Last question.  Away from the office what things give you the most pleasure?

A.  Family, reading, three dogs.

Q.  Any book recommendations?

A.  Right now I’m reading Wolf Hall.  It’s about Cromwell, and it’s fabulous.

Thanks for everything, Judy.
 

Preparing for a Successful Mediation
by Chuck Doran

A successful mediation will often conclude with both parties thanking me for my efforts and conveying their appreciation for my apparent ability to settle their case.  My response to them is “No, mediators don’t settle cases, parties do. Congratulations.” 

What determines whether a case will reach resolution?  A key factor is whether the parties have thoroughly and systematically prepared for their mediation.

Being prepared means that the parties have thought through in advance of the mediation what they hope to achieve in mediation, including: what is important to each party; what ideas might resolve the situation and what each party might do if they do not resolve the matter with the other person.

Systematic Preparation

Parties to a mediation are like politicians.  To be successful, politicians must identify their goals and, for each, articulate a rationale clearly and with conviction.  They must find many ways to skin a cat:  legislative battles are sometimes won by being pig-headed, but more often they are resolved by understanding and accommodating the interests of others, generating new ideas, and finding win-win solutions.

With these considerations in mind, I ask parties to think about the following questions in advance of the mediation:

1)  Interests - What are you hoping to achieve in mediation?  What interests, hopes and concerns do you hope to have addressed?  What do you think is important to the other person?  What do you think is important to both of you?

2) Options - What possible terms can you imagine both of you agreeing on?  What would be considered a good outcome for both of you?  (These ideas should meet the interests of the parties.) 

3) External Standards - What standards of fairness apply to both of you and to your situation?  What have other people done when faced with a situation like yours? What precedents, laws, and industry standards and norms apply to the situation.

4) Alternatives - What will you do if you do not reach agreement?  It's important that you compare any options that you create together with what you might do if you do not reach agreement (your alternative to an agreement).  Similarly, what will the other party do if there is no agreement?  (It’s helpful to understand the other party’s best alternative to a negotiated agreement too.)

5) Communication - What messages do you want to send?  What messages do you want to have heard?  What questions do you have for the other party?

6) Relationship - Is there a relationship between you?  If so, should it continue or end?  On what terms should it continue or end?

7) Commitment  Are you comfortable with the thought that the mediation may conclude with an agreement that works for you but is not necessarily perfect?  Depending on the outcome, are you prepared to enter into an agreement? Does the agreement have to be enforceable from your point of view?  Do you need to check in with anyone before committing to the agreement?

An Illustrative Example

Before I continue with other suggestions about how to prepare for mediation, it might be helpful to illustrate how some of these questions might be answered by considering a hypothetical situation.  Let’s imagine that a student has come to his professor on the day his term paper is due, requesting a two-week extension.

The professor’s interests might include:  ensuring fairness for other students, submitting final grades on time, avoiding disruption of her plans, avoiding the appearance of favoritism, helping  the student, and respect.  There might well be others.

The student’s interests might include: getting a good grade, opening up time to complete requirements for another course, avoiding failure or embarrassment.

Let's look at the connection between interests and options.  Options the professor and the student might consider include:  a one-week extension based on a reasonable excuse, a two-week extension with penalties such as extra work or a lower grade, and a grade of incomplete and an understanding that the paper would receive a lower grade than it would normally.  The strength of an option is how well the option meets their respective interests.

Standards might be what the professor has done in the past, what is customary in the institution, and what is prescribed by a handbook.

Both the professor and the student should understand what their alternatives are if they are unable to reach agreement. 

Alternatives that the student might consider include: taking his case to the dean, threatening to expose the professor on the Internet for not working with the student, doing nothing, etc.  Knowing their best alternative will provide guidance to both the professor and the student as they consider how to best get their interests met, whether by entering an agreement or by walking away.    

Let’s leave that hypothetical now and continue with other preparations for mediation that you might like to consider.

Beyond Preparation - Thoughts on Choosing a Mediator

Choose a mediator acceptable to both parties.  Mediators have different styles, expectations about the course and outcome of mediation, and personalities.  They should be free of conflicts of interest.  Their qualifications – experience as a mediator, subject matter expertise and an understanding of the culture, for example - should also be considered.  A case manager at a mediation firm will be able to provide you with mediator biographies to review.

Be sure the right parties are in the room.  In a dispute between two faculty members, the dean may be a necessary party, and there are instances where even the president may be the appropriate party (see the interview in this newsletter with Judy Malone above).  Senior figures may bring authority or options to the mediation table that others are not able to.

Make sure everyone understands that what is discussed during the mediation is confidential unless parties agree otherwise.  This may come as a surprise to those who supervise the parties or who have sponsored the mediation.  Confidentiality, aside from certain legal effects, aids the parties in speaking freely and thinking creatively.

Consider your opening statement.  Most mediators ask parties to state why they came to mediation and what they are hoping to achieve.  Thinking about what you say can help to ensure clarity, completeness, and brevity.  I do not recommend reading a prepared statement, however.  A party should make every effort to help the other party hear what they are saying, and a written statement, no matter how well read, is less likely to be heard than an oral statement directed to the other party.

Prepare a substantive elements of a negotiating plan using the seven questions above.  Based on their interests, parties should consider what proposals they might make at the mediation, developing a principled rationale for each.  In doing this, they should keep in mind that the other party's interests will have to be taken into account if an agreement is to be reached.  It is therefore important that both parties come to the table having defined their own and their counterpart's interests, and an effective mediator will ask both parties to prepare in this way.

Lastly, it's helpful if both parties attend the mediation with an open mind.  It is common for all of us to think of the one best solution, but what is best in one party’s mind my be anathema in another’s.  If both parties assert a solution that takes account only of their interests, and stick to their guns, stalemate will almost certainly follow.  That’s why it can pay for each party to consider the other’s interests as well as their own.  Not only can this lead to agreement, it can sometimes offer a bigger pie to be explored by the parties.

And that brings us full circle to the questions I opened this article with.  The more parties prepare in advance of the mediation, the more likely their mediation will be efficient, productive and successful for everyone involved.

Chuck Doran is a mediator, trainer and the Executive Director of Mediation Works Incorporated in Boston, MA.  He can be reached at cdoran@mwi.org.

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