In 1994, the United States District Court for the District of Vermont adopted an Early Neutral Evaluation program. It required that nearly every civil case on its docket be “evaluated” before being set for trial. I was fortunate to be one of the lawyers named to the initial panel of evaluators.
Although evaluation is featured prominently in the name of the program, the initial training provided through the Court emphasized mediation, not evaluation.
Some members of the ENE panel were more comfortable with evaluation than mediation. In their view, providing the parties with an independent view of the merits of a case is all that’s needed. Most of us took the mediation approach seriously and see our role as helping the parties to a dispute (and their lawyers) explore the issues that divide them and seek to voluntarily resolve them. Although I like to try cases, I know that most people will be better off with a negotiated solution.
Since my appointment to the ENE panel, mediation has been a satisfying part of my law practice., Like the other members of the panel, I plunged into the work with only my experience as a litigator and the training the Court provided.
Through the years, I’ve kept reading and attending occasional training programs on mediation. But in truth, it’s been mostly on-the-job learning.
This fall I attended “Mediating Disputes” a course offered by The Program on Negotiation at Harvard Law School Executive Education. Three leading experts in conflict resolution, Bob Mnookin, from Harvard Law School, Gary Friedman, from The Center for Understanding in Conflict, and Dana Curtis, formerly from Stanford Law School and Santa Clara Law School, led the program.
Course participants came from eighteen states and twelve countries and had a broad range of backgrounds and experience in dispute resolution. The course was an immersion in “The Understanding Based Model of Mediation,” which is centered on developing understanding, letting the parties own the conflict, proceeding by agreement, going beneath the problem, allowing tension, supporting autonomy, and honoring connection.
Unlike most mediations in civil cases in Vermont, “The Understanding Based Model” is a “no caucus” system in which the parties work together towards agreement in a joint session, facilitated by the mediator.
The course was a mix of lecture and mediation simulation, with a heavy balance favoring simulation. That provided an opportunity that more than 25 years in the field had not offered: Receiving regular critique and criticism from the faculty and other students.
Early neutral evaluation and understanding-based mediation couldn’t be more different. In the former, the evaluator tells the parties how their case should be resolved, often by predicting the likely result of an imposed resolution. The understanding-based model seeks to help the parties find their own path to resolving a dispute. Most mediations in Vermont rest somewhere between those poles.
I appreciate the integrity that comes from working in the same room to find a joint solution to a dispute. It’s not for every case, but particularly in instances where the parties’ joint constructive efforts can lead to creative solutions, understanding-based mediation has a lot to offer.
I love my work as a mediator and look forward to incorporating Understanding-Based Mediation into my practice.