| ADReport |
Alternative
Dispute Resolution Section Newsletter |
| Volume Two, Number
Two |
Honorable
Melanie A. Vaughn, Chair
Mary Louise Preis, Editor
Jonathan S. Rosenthal, Co-Editor |
Significantly Different
By Frank Pugh and Louise Phipps Senft,
Baltimore Mediation Center
Previously in this publication was an explanation
of the Court of Appeals Rules governing mediation. This comment seeks to
supplement that information by suggesting the philosophy and purpose underlying
the Rules.
The Court of Appeals has determined, correctly in
our view, that unless the mediation process is significantly different from the
usual settlement procedure undertaken by attorneys in a case, why have it? And
so the Rules give an expanded role in mediation to the parties in a case, the
clients, and a diminished role to counsel and to the mediator.
Parties are presumed to be able to engage
effectively in a mediated negotiation given the proper setting. Without the
providing of legal advice by the mediator, the parties are freer to explore
other bases for resolving their conflict. They can look at what might serve
their needs and interests without the confinement of legal parameters. They can
experience a more meaningful, more positive interaction without being
constrained by what would be, by other legal standards, considered weak or
irrelevant. If a suggested settlement proposal seems fair; seems to adequately
address the problem and the concerns of the parties, it can become a
satisfactory basis for a settlement even if, had the case gone to trial, other
results might have been ordered by the court. Legal remedies can often be
limited or restrictive. Clearly, judgments ordered by a court are not always
honored. A defendant may never have the means to make payments or otherwise
comply with an Order.
When parties in mediation realize that the
mediator is not going to resolve the matter for them, even by way of
recommendation, they both feel released to explore a wide range of do-able
options and also recognize that the matter is in their personal control. This is
so even though proposed settlements are normally discussed with counsel prior to
becoming final.
For lawyers serving as court appointed mediators,
the process requires adjustment. Lawyers give advice and make recommendations as
part of their regular professional routine. For attorney mediators, they must
bite their tongue even when, to them, a certain settlement scheme seems
absolutely perfect. To be sure, if parties reach rigid impasse, various
suggestions might be made by the mediator about various alternative process
considerations. Any such suggestion is only made provisionally, without pressure
or endorsement. The agreement process must always remain totally voluntary for
the parties and any agreement must be totally their own. Parties can, and do,
honor agreements that they personally architect.
And for attorney mediators, previously schooled
in putting a person on the stand and, with their questions, taking the party
where they want the party to go, the changeover to inviting the parties to go
where the parties want to go, and following them, can be difficult to master.
Yes, as lawyers, mediating in a manner consistent
with the philosophy now reflected in the Rules is difficult if staying true to
the mediation ethical standard, adopted by the new Rules, of party
self-determination. But seeing the realized potential of this form of mediation
as a complement to the usual settlement efforts made by counsel, has made us
grateful for the wisdom of the Court of Appeals in creating a
"significantly different" avenue to resolve conflicts.
Francis X. Pugh
Louise Phipps Senft
About the Authors: Louise Phipps Senft is the founder and Director of the Baltimore Mediation
Center. Frank Pugh is a senior mediator with the Baltimore Mediation
Center.
