By: Michael D. Mopsick
Published May 2017
Mediation is not monolithic. It spans literally every type of case that can be brought before a court and many that cannot. Even within each practice area (Family, Probate, Commercial, Personal Injury, etc.), one size does not fit all. And the types of parties that appear in mediation are even more diverse than the genres of their cases.
Nevertheless, civility in mediation is critical in virtually every case that we as mediators see. Mediation is a microcosm that reflects the decline of civility in our public discourse and demonstrates how the effects of that decline can contribute to making the mediator’s job these days a lot tougher.
So, what do we mean by “civility”, and why is it such a big deal in mediation? We know what civility is when we don’t see it. We see its absence more and more in our political campaigns, at all levels of government, and sadly, of late even in campaigns for judicial office.
The Institute for Civility in Government, on its website, put it succinctly: “Civility is claiming and caring for one’s identity, needs and beliefs without degrading someone else’s in the process”. Obversely, incivility includes the vilification, demonization, and degradation of the adversary personally in order to attack the adversary’s message. In mediation, civility also includes the idea of respect, but not only respect for an adversary’s views. It requires respect for their person, position, physical condition, level of intelligence, and even respect for what the person across the table is going through – their emotional state. In mediation, a true atmosphere of civility exists when all of the actors remain mindful of all of these factors. Yes, this is an idealized goal, but why not aspire to this kind of atmosphere rather than one in which every adversary is vilified as a loser, a liar, a moron, or a criminal?
From the mediator’s perspective, the success of a mediation is measured in only one way: whether or not it resulted in a settlement. Maintaining an atmosphere of civility in the mediation directly affects the chances of settlement. It is at the heart of the mediation process. First, a civil atmosphere allows for listening to the other party’s message instead of simply reacting defensively to a diatribe of insults that immediately shuts down the listening process. Second, it eases the transformation of the gladiator lawyer to conciliator. It requires that the “we will bury you” rhetoric be left outside, so the lawyers can start a civil discussion of the issues and the relative merits of their claims. Third, it allows the parties to stop dwelling on all of the injustices they’ve been dealt and finally start focusing on finding solutions.
An example of the impact of incivility on the mediation process is the loss, with increasing frequency, of one of the mediator’s most valuable tools: the opening joint session, and with it, the opening statement. In Family practice, counsel and mediators have almost routinely abandoned the joint session in favor of beginning the mediation with caucuses, a practice which is spreading to circuit civil cases. Rather than attempting to control the often inherent incivility, lawyers and mediators are opting to simply keep the parties, and even the lawyers, separated. What is avoided?
- The risk of offending the opposing party, even unintentionally, raising defensiveness and shutting the door to listening.
- Comments by counsel that cross the civility line, attack and insult the opponent more than their legal position, set a negative tone, fester, and prevent positive thinking.
- The litigants, thinking this is their day in court, adopting a confrontational attitude; they want to have their say, and by doing so, they slam the door shut just by the way they say it.
- Of course, there is always the risk of a violent confrontation, either at the mediation or later in the parking lot, or at home.
But here are some of the opportunities lost:
- For counsel to speak directly to the opposing party and to try to set a positive tone;
- To plant a seed of a positive idea at the outset.
- To allow a party to express, directly or subtly, what they really need in order to settle, even if it’s not within the framework of the pleadings.
- To allow the mediator to manage the parties’ expectations of the mediation process, to explain that this is not their day in court, and their lawyer is not, today, a gladiator who is going to bludgeon the other side into submission.
- To allow the mediator to speak to everyone at once and demand civility and creative thinking, to engage the parties equally in the process, and to explain that everyone has an equal responsibility for finding solutions to the conflict.
The opening joint session is an integral part of the mediation process. By abandoning it, we are ceding a valuable part of the process to the evils of incivility and abandoning an effective tool. We should be finding ways to restore civility to the process instead of giving up and tossing away part of the process itself. We need to do better.
Michael D. Mopsick is a member of the Alternative Dispute Resolution Committee and the Professionalism Committee of the Palm Beach County Bar Association and is a Florida Supreme Court Certified Circuit Civil Mediator