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How Might Mediation Work In Filner's Case?
August 21, 2013 1:28 p.m.
Leo Papas, mediator, former U.S. Magistrate Judge
Steven P. Dinkin, president, National Conflict Resolution Center
Related Story: How Might Mediation Work In Filner's Case?
CAVANAUGH: City leaders, attorneys, and mayor Bob Filner are reportedly meeting for a third day to hammer out a resolution to a sexual harassment lawsuit against Filner. And they are using the services of a mediator to negotiate the deal. Mediation is an increasingly popular alternative to regular court proceedings. It allows a wide range of disputes to be negotiated with the help of a third party, and it can save people both time and money. To tell us more about how mediations are conducted and how long they usually take, we have have two guests. Earlier today, I had a conversation with mediator and former U.S. magistrate, Judge Leo Papas.
(Audio Recording Played)
CAVANAUGH: Since you have experience in both roles as judge and mediator, when would you say a case is better off in mediation than a court proceeding?
PAPAS: Well, personally, I feel like mediation is the best alternative under any circumstances because litigation is a much more structured animal, and mediation is designed to be a more informal opportunity to reach a solution. I feel under any circumstance, mediation is a better alternative.
CAVANAUGH: What brings people to the mediation table?
PAPAS: Several factors. Among those that in mediation, you have some opportunity to exercise control on what the result might be. So you have an influence in a result, whereas in court you end up in a situation where you lose control because the judge and the jury are the ones that make the decision.
CAVANAUGH: Can you settle the same types of questions in mediation, money disputes, liability and that sort of thing?
PAPAS: Yes, not only that, you can do more in mediation than you can in litigation. There are no limits to what the solution can be. Which means you can explore things outside the box, so to speak. In litigation, are the nature of the claim defines the result, and as a result of that, you end up getting only what the particular claim allows you to get. In mediation, you can explore avenues well beyond that.
CAVANAUGH: In other words if a plaintiff in a lawsuit wanted a particular kind of apology or something along those lines, you might be able to pursue that.
PAPAS: Absolutely. And you and not only get apologies but you can get results where if the parties have a continuing relationship, into the future, there are ways of defining that relationship that can be done in a courtroom.
CAVANAUGH: How does the mediation actually take place? I think we all have a really good idea of what a courtroom looks like in our minds. But where does a mediation take place?
PAPAS: Well, it depends on the nature of the mediator and the parties. Oftentimes they're in offices related to a particular party's attorney or status. They can be in a court office, other locations. I worked with a provider that provides a location where you can have mediations so that the parties can come into a setting where there's no bias or apparent bias to either side or advantage to either side. And the mediator acts in the true capacity as a neutral.
CAVANAUGH: Are the parties in the same room?
PAPAS: They can be. The traditional, classic mediation format is for the parties to be in the same room. And the mediator would discuss the feud between the parties. More and more, however, the mediation format is that the parties either start together and break into separate rooms or start in separate rooms, and if appropriate, come together. And the mediator acts as shuttle diplomacy, moving back and forth between the rooms to facilitate a result.
CAVANAUGH: And what is your role as a mediator? Do you let the parties work through their issues, or do you suggest solutions?
PAPAS: Well, it depends on the case and the parties and the attorneys. The traditional role of a mediator is more facilitative than one that provides direction. But I think you end up having to kind of tailor how you handle a mediation depending upon the circumstances. So in one†case, I might be more facilitative where the parties seem to have a very good idea of what they would like and how it should be accomplished. Whereas in other circumstances, they may be looking more to the mediator to give them some clues and ideas which allows me then to express things in a way -- I will give you the ideas, but I don't want to be the architect of a failed strategy and be blamed for the failure of the opportunity. So it depends.
CAVANAUGH: What role do attorneys play in this process?
PAPAS: Well, the attorneys are critical. They have to not only understand the law associated with the claim, but they also have to know the facts of the case so well that if they went into a courtroom, they would know what should happen. And they also have to know their clients very well.
CAVANAUGH: I think we all know that lawsuits can drag on for a very long time. How long does mediations usually take?
PAPAS: Again, depending on the nature of the claims and the complexity of the issues, and sometimes the number of parties, they can last from anywhere from half a day to months. I'm working on several cases that have been pending for over a year, and we have periodic meetings because there are things that have to be done in order to move to the next stage or phase. But on will average, most mediations are accomplished usually in about a day, sometimes a little less, sometimes a little more. And oftentimes if you don't reach an understanding at the mediation, the mediator, like I, will stay in touch with the parties and continue to dialogue to try to get them to move closer to a solution.
CAVANAUGH: And are the settlements reached in a mediation legally binding?
PAPAS: They are. If they follow certain criteria and requirements under the law. In California, mediation is absolutely confidential. So you can't go into court and say, why, they said this and that during the mediation. As a result, the only way to enforce mediation results or settlements or to do it in a writing signed by the parties, not the attorneys, but the parties themselves so that the Court can say you bound yourself to this result. The other alternative is to go into a courtroom and do it on the record, in other words a court reporter or electronic recording. Or the third I guess is you could have a reporter come into your mediation and have it dictated in that context. But it has to be something on the record or in writing signed by the parties to be enforceable, otherwise it's not.
CAVANAUGH: Thanks so much.
PAPAS: You're quite welcome. Thank you for the opportunity.
( End Audio Recording )
CAVANAUGH: Joining me now is Steven Dinkin, president of the National Center for Conflict Resolution. Welcome to the program.
DINKIN: Thank you.
CAVANAUGH: What types of disputes are most frequently resolved by mediation?
DINKIN: We see so many conflicts across society, and mediation can be used across the board from medical malpractice issues, real estate, construction defect, divorce cases, basic community disputes, it's a wide range of types of issues.
CAVANAUGH: And when people come to you to try to mediate their conflict, have they usually tried other things first?
DINKIN: Off times they try to get the matter resolved themselves, and ideally if they can get the matter resolved themselves, they're ahead of the game. But if frustration levels increase to the point where they can't get it resolved, or if they try going through the Court process, and it's too frustrating, they'll come to the mediation.
CAVANAUGH: So people can come to you after they have been to court then?
DINKIN: Absolutely. Even once they're in court, there are still opportunities for the settlement through the mediation process.
CAVANAUGH: How much do you need to know about the parties to be an effective mediator?
DINKIN: You don't need to know very much about the parties at all. Some mediators like to review briefs so they have an understanding of each party's perspective and what their legal arguments are before the mediation occurs. But some mediators like to come into the mediation without any previous knowledge.
CAVANAUGH: What type of employment law issues can be mediated?
DINKIN: There's a host of different types of employment matters. It could be sexual harassment issues, it could be pay issues, vacation problems, other types of abuse in the workplace.
CAVANAUGH: Harkening back to what the judge said, one of the aspects of mediation that some people find attractive is that it's not just monetary damages but other forms of recourse. Have you gone through something like that, where something that would not be awarded in a court of law was actually mediated and resolved the conflict?
DINKIN: Absolutely. One of the great advantages of the mediation process, first of all, it's confidential. So it allows the parties to come up with innovative, creative solutions. And it can go well beyond monetary damages. In the situation of an employment matter, sometimes the employee would prefer maybe a solid recommendation letter going out to the next job, or perhaps moving into a different division. Sometimes employees want additional training. So there's a whole range of different types of issues that can be mediated and brought into the solution.
CAVANAUGH: A caller just asked what's the difference between mediation and arbitration?
DINKIN: Most people are confused about that. But an arbitration is really like hiring a private judge. So someone comes into the process, it's binding, and when they enter the process, they present their evidence, and that arbitrator renders a decision. In a mediation, doesn't decide who's right or wrong, they are facilitating the negotiation, helping the individuals come to a solution. So in the mediation process, it's not binding in the sense that when parties come into the mediation, they can walk away at any point. They're not beholden. The mediator is not going to render a decision. So it's more of an informal process, and the parties themselves come up with the solution, and as a result of that, typically these agreements are more sustainable because the parties are coming up with their own agreement. And they're more invested in the agreement if they're coming up with the solutions as opposed to an arbitrator who is just rendering a decision like a judge would in a court.
CAVANAUGH: What do you do when you come to an impasse?
DINKIN: That occurs fairly often in mediation. So the mediator has a range of different types of tools that he or she can use to overcome the impasse. Oftentimes people come into the mediation with an inflated view of their case. So it's the mediator's role oftentimes through probing questions to them get a better understanding of really the true value of their case and how that case might be presented before a jury. So the mediator really has a whole bag of tricks to use, techniques I should say, to help the parties overcome impasse.
CAVANAUGH: I would imagine that sometimes emotions are quite raw during these sessions. Do you experience that too?
DINKIN: Oftentimes parties come into the mediation very frustrated, that's really why they can't get the matter resolved themselves. If the emotions were not overwhelming, oftentimes they could have done it without a mediator. So the mediator can find certain grounds commonality, allow the parties to vent their frustration. The key is that that frustration be vented before moving toward the solution. If you jump right to the solution, people will still have those underlying feelings of frustration that will carry on well after the mediation process. So it's important to really address those issues.
CAVANAUGH: And also provide that reality check so people know the strength of their case and what they might face if they took this into a court of law.
DINKIN: Absolutely. It's critical for parties to really get a sense of the weaknesses and strengths of their case. And also the other party's strengths and weaknesses. And once they go through that analysis, more times than not, they're going to want to move forward to settle because they're going to be surprised by some of the pitfalls they have in their own case.
CAVANAUGH: Tell us more about confidentiality and mediation. The rules are more strict in a mediation than they are in a courtroom setting; is that right?
DINKIN: In a courtroom setting, it's a public forum. And so any discussions that are had within the Court are really open to public knowledge. In a mediation setting, it is confidential. And just as in the case with the mayor, the judge said the parties are now allowed to speak to the mediator with regard to the case. And so if later on one of the parties would like a mediator, for example, to testify before the Court, the confidentiality rules based on the statute, the evidence code, dictates that a mediator cannot participate in a court and express matters that happen during the course of the mediation.
CAVANAUGH: Is it therefore possible that the results of a mediation, the resolution would never be able to be known by the public?
DINKIN: That's -- it's based upon the parties. So they would have to waive the confidentiality provision in order for the settlement or the agreement to be announced to the public. So the parties who are coming into the mediation process, they can state that the agreement itself can be made public.
CAVANAUGH: I want to ask you a question, just for your opinion. Do you think mediation is a good way to resolve the question of whether a politician should stay in office or step down? Or should there be a more open public forum for that?
DINKIN: I think the mediation process can be very effective in this situation. If it's opened up to a public discussion, I think it would be very challenging to come to a solution. And the advantage of being in a room with a well experienced mediator, with all the parties involved, it gives them some flexibility and wiggle room to come to a solution that might benefit the whole city.
CAVANAUGH: And in your experience, I know I asked the same question to the judge, but how long do mediations usually last?
DINKIN: They can last from anywhere from three hours to multiple days. It depends on the complexity of the situation, the number of parties involved in the dispute. So it could last several day, sometimes even weeks.
CAVANAUGH: All right then. Thank you so much.
DINKIN: My pleasure.