Situational Mediation: Sensible Conflict Resolution.

Oliver Ross Issues Press www.idyllarbor.com 297 pp., $35

In 1973, the late country singer Charlie Rich scored a hit with a romantic ballad, singing, "No one knows what goes on behind closed doors." For trial lawyers, what goes on behind the closed doors of a mediation conference is also a mystery.

Through the years, many attorneys have asked me what occurs when mediators separate the participants and conduct their private sessions with the parties and their counsel.

This book answers the questions of trial lawyers and other curious souls and provides fascinating insights into the dynamics of the mediation process. Oliver Ross, a veteran trial lawyer and mediator with a doctorate in human behavior psychology, generously takes readers behind the closed doors of the mediation process and into the mindset and thought process of a professional mediator. In so doing, Ross offers useful insights into how mediators (and attorneys) can help highly conflicted parties resolve disputes sensibly and find durable results.

In his introduction, Ross advocates "situational mediation," which combines elements of evaluative, collaborative, transformative, and humanistic styles of mediation. He offers situational mediation as a sensible, real-life approach for resolving disputes and teaching effective methods of conflict resolution, as the process can be adapted to the nature of the dispute and the parties.

Situational mediators show empathy, humility, and compassion to all participants, recognizing that most interpersonal disputes entail the loss of potential relationships. These mediators understand that many participants are in one stage or another of a grief process, with varying degrees of anger, sadness, and other emotions. Ross believes that situational mediation leads participants to settlement while fostering opportunities for transformation.

Throughout his booK, Ross demonstrates how situational mediation can help participants resolve different types of conflicts. The well-organized book is divided into three sections: The first (and largest) discusses mediating family disputes; the second, workplace and contract disputes; and the third, anger and other emotional issues that frequently arise during mediation. In each scenario, the author brings us into the mediation conference room and allows us to experience the process, through dialogue between the mediator and the participants.

In his mediation practice, the author works primarily with parties who have come to him voluntarily and are not yet formally represented by counsel. They work together in several sessions, and each chapter of the book addresses a specific one. The author's sample dialogue shows the reader the panoply of emotions--anger, fear, confusion, and grief--that the participants experience, including the mediator.

What makes this book especially useful for lawyers and mediators is Ross's personal commentary, in which he shares his thoughts, feelings, doubts, mental impressions, and goals for each phase of the process. He also explains his strategies in dealing with the participants and managing the mediation.

In these segments, Ross identifies and discusses many professional dilemmas --confidentiality issues, parties' competence to make informed decisions, mediator neutrality, and the giving of legal information as opposed to legal advice--that mediators confront in almost all their cases.

Through the course of the book, Ross likens the mediation process to airplane travel to show the reader how the situational approach can be used to resolve any type of conflict. This device works well, and mediators and attorneys can use it to explain the mediation process to their clients. For instance, in the first section, the author describes a premediation consultation with a couple contemplating divorce. He calls this the "preflight" phase, in which the participants select a mediator, setting, and meeting schedule, much as air passengers select an airline, flight, and seat number.

His goal at the beginning of a consultation is to give people the information they need to decide whether mediation, and his approach to it, is the appropriate strategy for them.

After "preflight" comes the "taking off" stage, in which the participants hear about the use of legal counsel, private sessions, and so forth, just as airplane passengers hear about seat-belt and emergency-exit policies.

Stage three of the author's situational mediation process is "altitude," in which he begins to organize the information disclosed by the participants into three categories: what, want, and willing. Here, the mediator and the participants gain an understanding about what they are willing to do in order to get what they want. Ross helps the parties "get current" on what they believe has already been agreed upon; what is still undecided; their concerns, if not their worries and fears; and what they would like to see as the results or outcomes of the mediation process.

When the clients can articulate their answers to these four issues, the attorney can then understand their expectations of the mediation process. Attorneys will greatly assist their clients--as well as themselves and their mediators--in structuring the negotiation process around these expectations.

Next is the "acceleration" stage, in which the participants increase their communication and collaboration. The mediator has already helped the parties gain altitude in their negotiation by establishing rules and procedures, and now he helps them communicate, collaborate, and gather the information they need to make fully informed decisions.

They next enter the "cruising" phase, in which they are likely to feel comfortable with their surroundings. Now more accustomed to the mediation process, the participants are usually ready to more forward toward negotiation and decision-making.

The final phase is "landing," in which the parties have (Ross hopes) finalized the terms of their settlement agreement and arrived safely at their destination.

The author uses this technique of interspersing dialogue and commentary throughout the remainder of the book to show how the concepts, techniques, and procedures used in this divorce mediation can also be used to resolve any type of conflict, including those between family members, business partners, members of professional practices, and other coworkers.

Although the participants in this book's examples did not retain attorneys, the author does not oppose attorneys' involvement. In fact, he says,

   Attorneys for participants can and often do
   take part in the mediation process, but as
   consultants rather than combatants. Indeed,
   I welcome the involvement of attorneys
   in this manner, and encourage clients
   to consult with them with respect to any
   doubts that they may have during mediation
   and, certainly, before they sign a settlement
   agreement.

Ross's description of psychiatrist Elisabeth Kubler-Ross's "five stages of grief"--denial, anger, bargaining, depression, and acceptance, as introduced in her landmark book On Death and Dying--is interesting and highly instructive for mediators and lawyers. In the frenetic pace of out daily lives, we trial attorneys sometimes forget that what we see as routine matters are actually intensely painful personal and professional crises for out clients.

The book's appendix contains sample forms that would be helpful in the mediation process. I found that these forms are useful and worth reading. Similarly, the chapters titled "The Anatomy of Anger" and "Management of Anger and Other Solutions" are thoughtful and well-written.

Situational Mediation can be repetitive at times, thanks to the author's verbatim reuse of significant portions of dialogue and commentary; however, I recommend it to professional mediators, attorneys, and other business professionals who are seeking to improve their conflict-resolution skills. Professional mediators can use some of the concepts, techniques, and procedures outlined in the book to help resolve disputes; I know I will. Similarly, attorneys should use some of its principles to prepare themselves and their clients before beginning mediation.

Although the book may be too large to give clients as a mediation primer, attorneys can share some of its concepts with their clients to help them understand how the mediation process works. This book should also remind mediators of, and sensitize attorneys to, the challenges, pressures, and stresses clients experience as they work to resolve their disputes.

BRUCE A. BLITMAN is an attorney and certified mediator in Fort Lauderdale, Florida.