Mediation Outside the Box

Recently I took on the representation of a franchisee in a very small food service system. My initial interview exposed some unique features of my client's franchise; He was one of only a few franchisees, and his franchisor was his brother. I immediately began to get the sense that the issues and conflicts they were experiencing, although legally significant, were additionally set off and based in an emotional family dispute.

Our position was well supported legally so, as in most cases, there was an initial round of demand letters sent by the three lawyers, and we began, as is typical, to build our case with opposing counsel. Upon reviewing the letters it struck me that there has to be a way to get to a resolution, without blowing up the franchise system and the family. Ken Cloke's training and philosophy came to mind; that to resolve this matter, short of litigation, delving into the "relationship" of the parties was necessary. In a litigated case, when you are counsel for one party, that is not always easy. There is the concern you may look weak for suggesting a less then litigated approach early on but I sensed in this case with our strong legal position, that would not be an issue. I decided to call opposing counsel, and focus our discussion not on the substantive legal analysis, but the resolution based upon a quelling of the family related conflict. I was curious to see if they would be willing to participate in a bit of a negotiation/mediation hybrid session; allowing for early intervention that might win out over protracted litigation where there are significant emotional issues connected with the commercial dispute.

Opposing counsel, both litigators, recognized the scenario as well, and agreed to participate. I have to credit them with the open mindedness to see the larger picture and focus on the client's needs. Neither of the opposing counsel were trained mediators, but both had been in mediations so it was not a foreign process. I am a well seasoned mediator and was confident I could design and guide a useful process, taking into account I was representing one of the parties. I built a structure for our session that included opposing counsel's participation, which mimicked a co-mediation format. The opening introductions and instructions were split amongst the three of us. We went through the purpose of the day, mediation, client's owning of the process and right to change it, as well as presenting them with a "Confidential Negotiation Agreement" crafted from a traditional mediation agreement, to provide a sense of comfort and openness to the parties.

We the attorneys, created a plan on how to handle the "mediation," which included guiding the discussion; most notably asking open ended questions to focus their understanding of the dispute and the other parties perception. We spent time drilling down to the true interests of the parties, as well as the necessity of getting through the emotional issues, before we could approach the business concerns. The mediation was 5 hours, although it felt as though it was 15 minutes. We spent quite a bit of time working out the relationship issues, discussing the reason these disputes came to be, and the emotion behind them, and the impact or perception those conflicts had on the business issues. It was interesting to note how the older brother younger brother positions growing up, impacted the way they behaved in their business relationship, and how that realization, allowed them understand the impact it was having in dealing with business issues, and their resolution.

We also were able to uncover the relationship issues between the sister-in-law's, and their role in the business and conflict. Opening up and discussing some misperceptions they each had, that began well before the business began.

We then shifted our focus on the business issues at hand. The business concerns seemed to melt away, after the initial discussion and in fairly short order had resolved each concern and created a plan on rectifying communication, and operational deficiencies.

We created a written memo of understanding that clarified the business operations, as well as a regular meeting schedule for the parties, outside the business, to reconcile and rebuild their relationships and discuss those issues that seemed to get under their skin, before they blew up. The parties hugged, cried and left with a sense of renew and understanding.

This process was unique, but served our client's interests and needs, it resolved issues, shed daylight on deep emotional issues, and in the end left them with a system or process to resolve their conflicts. We as lawyers set patterns in our handling of clients, sometimes changing the focus, or just putting ourselves into the dispute and asking "how I want this done if I were in this dispute?" can change the dynamic and open up opportunities for resolution.

We had the right mix of legal counsel to approach and pull this off. I took the time to understand the interests of all the parties and a sense of opposing counsel's demeanor, which assisted me in formulating this approach.

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