Notes from the Front Line
USE OF TRIAGE IN MEDIATION
By Glenn M. Gottlieb, Esq. - Mediator-Attorney; Principal, Gottlieb Mediation
I have recently conducted several complex mediation sessions involving multiple parties and multiple issues, where I found the use of a form of “triage” highly useful. Triage is more often associated with medical practice in disaster or battlefield scenarios, where there are dozens of injured and/or wounded, and there is a need to organize the response due to limited resources. Those needing aid are divided into groups, so those needing immediate attention can be identified quickly, and the maximum benefit can be conferred on the maximum number of victims.
In less emergent situations, the practice might be termed simply as “setting priorities.” I prefer the idea of triage, and its implication of grouping similarly-situated parties and/or issues, rather than making a detailed, item-by-item prioritized list. Whatever term is used, when faced with a complex, multi-party or multi-issue mediation, a thoughtful, pre-mediation analysis of how to proceed can be highly beneficial.
One recent multi-party mediation I convened involved a real estate development deal gone bad. The main lawsuit involved one of the sub-contractors suing for payment for materials delivered to the project. As is often the case in these cases, several other parties had been brought in besides plaintiff’s immediate contracting party (who happened to be one of the sub-contractors); other defendants included the general contractor, property owner/developer, and lender.
My recent practice in most cases is to meet separately with the parties first, and only then (and even then, only if warranted) to convene a joint session. I first decided not to require all the parties to show up at the same time, and thereby avoided forcing several of them to wait while I met in succession with each of the others. I set up a staggered starting time for the mediation, and had each of the parties show up in half-hour intervals.
While standard mediation theory has it that the later parties might fear an imbalance or adverse prejudice from my having met with the earlier parties and heard their story first, my experience has been otherwise. I find most lawyers and their clients in general civil cases prefer to meet individually with me to discuss their cases, and because they trust my neutrality, they don’t mind being heard later in the sequence. In my case, the parties were grateful not to have to sit around for the first few hours, while I worked my way around to each of the other parties.
After meeting with all parties, it was clear the “guts” of the case had to do with the relationship of the two sub-contractors and the owner/developer. Nevertheless, I decided to deal with the relatively minor issue of the lender first. That way, if I could settle those issues, the lender’s representative and its counsel would not have to stay throughout the longer mediation of the main issues. The strategy proved to be effective, and lender and its counsel were particularly grateful upon leaving “early” that I was able to minimize their legal expense, and the use of their time that day.
I used the concept of triage in another complex, multi-issue case I handled recently. There was one, main issue involved in the case and several minor issues. While everyone was initially focused heavily on the major issue, I convinced the parties to tackle and attempt to resolve the minor issues first. This helped build confidence and trust among the parties, a positive momentum in settling issues, and acted as a foundation for settling the more difficult, major issue that was the primary subject of the litigation.
This can be particularly true in a divorce mediation, or any other case when there is “high conflict” or a lot of emotion on one or both sides. By starting with less difficult issues that can be more easily resolved, tensions and emotions can be lowered, and the parties can start to build some trust, if not in each other, at least in the process! You can then build on that foundation and create some momentum toward achieving an overall settlement. In a divorce mediation, where the parties may have to continue to deal with each other even after the initial “settlement” is concluded, how the early stages of the mediation are approached can be crucial to setting the tone for making progress later.
That is not to say that in another type of case or another fact pattern, it might be a better to consider resolving the big, major issue first. The hope might be that once the main issue is resolved, the other, more minor issues would then fall into place more quickly and easily. As with most things in the mediator’s “toolbox,” there is almost never one answer that fits every situation.
The point is that, when faced with a complex case, whether due to multiple parties, multiple issues or otherwise, it is wise to think about triage, or priority setting, before just jumping into the water and starting to splash around. A thoughtful, strategic decision how to approach the mediation can be critical in the early stages. The choices that are made can prove to be pivotal as to whether a case settles or not.
© Glenn M. Gottlieb. All rights reserved.