By: Eric Galton, IAM Distinguished Fellow
Posted: September 29, 2015
I have been experimenting with a process variation: I no longer have joint sessions with opening presentations. Instead, I host learning conversations.
I’m hosting learning conversations in almost all pre-suit mediations and in litigated cases in which little discovery has been done, barring a specific reason to refrain. I also host learning conversations, barring objection, in more developed litigated cases.
I never liked the term “opening presentation,” frequently taught in basic and advanced mediation trainings. The term seems borrowed from the law side and sounds adversarial. In fact, these more lawyerly joint sessions may set the adversarial tone that users of mediation don’t like. An opening presentation often suggests a speech, an argument, or something perceived as negative. Quite simply, an opening presentation may create the wrong tone.
Most people like to learn and most enjoy conversation. Thus, the term “learning conversation” seems to resonate and hit the right buttons with most people, including lawyers. The term itself seems the opposite of argument and grandstanding.
In learning conversations, I also tell the parties that I am abandoning the sacred cow No Interruption rule. I encourage the parties to ask questions during the conversation. Otherwise, it’s really not a conversation – it’s a speech.
So here’s how it’s done. First, I explain the point of the learning conversation is for all of us to learn, the mediator included. I explain that mediation involves a group attempt to understand each other, walk in each other’s shoes, and go through a collective process of evaluation and re-evaluation.
I also explain that polite questions are encouraged and helpful. Questions that help clarify or provide insight are always welcome. Additionally, if documents will support or shed light on a topic, I ask that they be exchanged.
As you might expect, learning conversations are powerful tools in pre-suit mediations and those with little discovery. I have used this process in about twenty cases, all of which have happily settled. I have used this process in about a dozen more developed cases, with similar results.
I have been greatly encouraged by lawyer reaction to this somewhat reframed process. Lawyers not only don’t push back, but they are very good at learning conversations. Parties seem to be very attentive and involved.
The mediator’s role is to initiate the conversation and basically stay quiet as long as it goes well. Occasionally, I join in to take the conversation in a different direction or to compliment counsel or the parties on how helpful their participation has been. I have been waiting for the eventual flare-up, but so far there has been none.
I am sure that what I am doing is not a new invention and that many mediators have been using a similar approach. But I guess I never realized that what you call something and how you implement it could so drastically impact how people react and participate. Business executives especially like this process and really find it useful.
I hope sharing this allows further experimentation with learning conversations and suggestions on better ways to develop and implement them.