Because Michigan’s courts are all but closed during the COVID-19 coronavirus pandemic, if you need to adjourn in-person mediations and arbitrations, you should do so; everyone will understand and undoubtedly support that decision. But if you need to proceed with your mediation or arbitration in a safe environment, and there aren’t other reasons against it, then “remote” ADR using videoconferencing is a viable option. In fact, we can all anticipate an increase in online mediation and arbitration proceedings using digital platforms over the next few months.
Discovery and discovery disputes are two of the most significant drivers in the cost of litigation. Effective January 1, 2020, who and how litigants resolve discovery issues under the court rules is changing in Michigan. With the addition of a new provision – MCR 2.411(H) – the Michigan Supreme Court ordered: “The parties may stipulate to or the court may order the mediation of discovery disputes….”
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.
