At the urging of the Michigan Supreme Court, the State Bar of Michigan established a task force to evaluate and propose any recommended changes in discovery practices in the Michigan trial courts. In 2016, as part of the Bar’s 21st Century Task Force final report, the Board included the following amongst its goals:
Modify court rules to reduce the expense and burden of civil discovery.
Research whether pretrial discovery and practice should be tailored on a case-by-case basis, taking into consideration the parties’ financial resources and other relevant factors.
Modify court rules and administrative procedure to better utilize mediation and alternative dispute resolution (ADR).
Promote business process analysis, problem-solving court principles, and best practices to courts, law firms, legal aid programs, and other justice system entities.
Promote the use of properly trained mediators or special masters to expedite the discovery process.
With increasing frequency (often during a mediation) we hear the refrains: “There are just some people I can’t talk to” or “They just don’t listen to reason.” The polarization of society into the “right” and “wrong” camps is undoubtedly a contributory factor to the reticence to engage in difficult but critically important conversations.
While a fascinating social development, the inability to have productive difficult conversations is all too often self-defeating and counterproductive to important negotiations, including those that take place during mediations. A sine qua non of many successful and mutually beneficial business negotiations is truly engaging in positive conflict resolution through knowing how to have difficult conversations effectively.
The well-recognized psychological phenomenon known as “commitment to decision” or “escalation of commitment” poses a significant challenge to decision makers and negotiators. Once the commitment to decision hardens, otherwise intelligent and perceptive negotiators become increasingly entrenched in the continued pursuit of an original decision that from all objective data is doomed to failure.
Evolving research and studies, as well as my preliminary discussions with the September ADR panel presenters, emphasize that the selection of the “right” mediator is the most important step on the journey to a successful mediation. As the data and my conversations have reinforced, qualified mediators possess certain critical characteristics such as creativity, persistence, subject matter knowledge, and listening skills. I want to focus now on preparation.
In a recent article, co-authors Hon. John C. Foster, Richard L. Hurford, and Douglas L. Toering reviewed the statute establishing Michigan's business courts, the rationale behind it, and a comparison of arbitration, as well as offering a protocol for pre-litigation mediation.
