MEDIATOR STRATEGIES FOR LAWYERS The Four-Party Settlement Conference

Judith Ryan

This article explores the use of a four-way conference by attorneys to effect settlement. The author describes the process, analyzes factors leading to success, andgives a case example.

The four-party settlement conference is a much-maligned and, conse- quently, underutilized tool among the strategies of the family law lawyer. In proposing such a meeting, the lawyer is often met with an immediate negative response. Comments such as “The parties are too far apart,” “The meeting will only disintegrate into a free-for-all,” or “These meetings are a waste of time and money” are only too familiar. All of these comments may be true and may reflect the past experience of the lawyers in question at one time or another. However, with a greater understanding of the process and the skills necessary to control and manage conflict, the lawyer may find the four-party settlement conference an extremely effective means of resolving family law disputes. In these days of rising legal costs and criticism of the adversarial system, it is an option to which every family lawyer should give serious consideration.

WHAT IS THE FOUR-PARTY SETTLEMENT CONFERENCE?

A four-party settlement conference is a meeting between two opposing counsel and their clients for the purpose of settling the issues between them. The meeting may take place with all four parties present in the same room or with the lawyers shuttling between their clients present on the same premises but in different rooms, or it may be a combination of both. The purpose of the meeting is to narrow or resolve as many of the issues as possible between the parties. The process allows for the controlled expression of both parties’ feelings, improved communications between both lawyers and clients, and negotiations on the defined issues. Such meetings are held on a “without prejudice basis” for the purpose of effecting settlement, and

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therefore communications made during the meeting are to be held in confi- dence and not used for the purpose of subsequent litigation.

What are the advantages of a four-party settlement conference? There are many benefits to a four-party meeting for both lawyers and their clients. For the lawyers, they retain control of the settlement negotiations, control that is often lost when the case is referred to a third-party neutral for resolution. In fact, the four-party option may be preferable when a qualified mediator is not available, or when mediation is inappropriate because of extreme power imbalances between the parties, situations of domestic violence, or mental health problems, or when the level of hostility between the clients is extreme. In such cases, the lawyers can separate the clients and redress power imbal- ances by carrying on the negotiations on behalf of their clients. The fact that both clients are present on the same premises means that the lawyers can obtain immediate instructions and responses to proposed offers to settle.

For the parties, the four-party settlement conference can offer many of the same advantages as mediation. The parties can communicate directly with each other in the presence of their counsel, thus avoiding misunderstandings that arise when communications are filtered individually through several different persons. The parties can also take more responsibility for solving their own problems, rather than have counsel negotiate “for” them. This may have the benefit of raising client self-esteem and developing problem-solving skills that can be used in the course of the parties’ ongoing relationship. Solutions that are the clients’ (as opposed to the lawyers’) have a greater chance of being upheld over time. Overall, the four-party settlement confer- ence offers an opportunity for the two sides to identify mutual interests and forge win-win solutions for their mutual benefit.

Even when the four-party meeting does not result in a settlement, it may serve to narrow the issues and clarify misunderstandings that are impeding settlement. Like the “discovery” process, the four-party settlement confer- ence offers lawyers an opportunity to observe the other side directly and to obtain additional information, all of which may cause him or her to shift his or her view of the case and to revise settlement demands. Finally, the four-party settlement conference offers an opportunity for the lawyer to legitimately bypass opposing counsel, who may be irrationally standing in the way of settlement. By meeting in the presence of both counsel and clients, the lawyer has an opportunity to meet directly with the other client, thus facilitating settlement.

On the disadvantage side, if a four-party meeting is allowed to disintegrate into name calling and blaming, hostile feelings may be inflamed and settle-

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ment positions hardened. It is the role of the lawyers in such a meeting to control the expression of feeling and to manage the conflict in such a way as to promote settlement.

SOME CONSIDERATIONS IN FOUR-PARTY SETTLEMENT CONFERENCES

When to Ask for a Four-Party Meeting

It is often helpful to request a four-party meeting early in the legal process, even before litigation is commenced, without first engaging in costly, and perhaps unnecessary, formal discovery. When used early in the process, the four-party meeting can be helpful in identifying the interests of both clients that need to be satisfied in any potential settlement and in avoidingescalation of the conflict between them. Farther along in the process, a four-party settlement conference can be called after pleadings have been exchanged, to narrow the issues between the parties. A four-party meeting can also be convened just before trial, when each side has a good understanding of the strengths and weaknesses of the case and when the costs of an impending trial are most real to the parties.

Where to Hold the Four-Party Meeting

The setting for a four-party meeting is important, in that it must be both comfortable and convenient for both parties and their solicitors. If one has to travel a very long distance or parking is a hassle, the mood conducive to settlement may be broken. Psychologically, it may be important to attend at the offtces of opposing counsel, if one wishes to convey a strong intention “to meet the other side more than half way.” If there is more than one such meeting, the locations can be alternated. Generally, the meetings take place in the board room of one or other of the parties’ counsel. It is important, however, that a break-out room be available for private caucuses between each solicitor and his or her client. Around table is preferable because it puts all parties on an equal footing. If a boardroom table is used, the seating arrangement is important, so that it does not appear to give one side advantage over the other. Coffee and tea should be available to create an informal, relaxed atmosphere. Sufficient time must be allotted in every case, so that the process can develop appropriately. Everyone involved must take care to clear his or her schedule for a minimum of 2 to 3 hours without interruption.

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If a marathon session is planned, one must allow for both “time outs’’ and nourishment. Starvation is not conducive to a consensual agreement.

Preparation of Client

To get the most out of any four-party settlement meeting, the lawyer must ensure that his or her client is adequately prepared. The client should be aware that he or she will be expected to speak in the settlement conference and should think in advance about what it is he or she wants to say. Both lawyers and clients should go to the meeting with their “homework” done, that is, in a position to identify interests and make proposals to satisfy these interests. Calculations, appraisals of value, and other back-up documentation should be available to exchange at or prior to the meeting.

THE FOUR-PARTY PROCESS

A four-party conference, if managed effectively, progresses through var- ious phases, beginning with the controlled expression of feelings, moving into the definition and clarification of issues, identification of underlying interests, and information sharing. Only after these earlier stages have been explored should the parties move ahead into the actual settlement negotia- tions. Too often, in their eagerness to settle, both clients and their solicitors jump directly into the negotiation phase before properly laying the ground- work. In such cases, the parties may not be emotionally ready to talk settle- ment, and the meeting ends unsuccessfully. By allowing the conference to progress naturally through all phases of the process, the lawyers enhance the opportunities for settlement.

SE’lTING THE STAGE FOR NEGOTIATIONS

The controlled expression of feelings. The four-party meeting generally commences with the lawyers taking the lead in setting the agenda of issues to be discussed. As each issue is identified, the parties themselves are encouraged to comment and to express their own views. The more directly the parties can communicate to each other the better, and the lawyers should take care to foster the parties’ participation and constructive interaction. In many cases, the parties may not have spoken to each other directly for extended periods of time. The four-party meeting, therefore, serves as a vehicle to reopen communications between them and to help clarify misun-

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derstandings that may have arisen because of the lack of communication. Such misunderstandings often have given rise to intense feelings of anger and hostility. The parties may also bring to the meeting strong unresolved feelings related to the marriage breakdown. Each party will thus have a strong emotional need to be heard and to have his or her feelings acknowledged and understood.

Clearly, the lawyers are not present to be therapists for the parties. However, in most cases, the emotional aspects of the dispute must be openly acknowledged before the parties are ready to move on to constructive problem solving. The lawyers’ role at this point is to facilitate the controlled expression of feelings. In so doing, the lawyers control the process, setting ground rules by which the expression of feelings is to take place. Each party is encouraged to talk in the first person. Name calling and disparaging remarks and statements “about” the other person are not permitted. Each party is allowed time to complete his or her statements without interruption by the other. The other is then allowed to respond, again without interruption. After the parties have had an opportunity to express their feelings and have these heard and acknowledged, the lawyers move on to fact finding, identi- fication of interests, and problem solving.

Sharing information, defining issues, and identibing underlying interests. Once the issues are “on the table,” these are prioritized and examined in greater depth, in order of their importance to the parties. A flip chart or whiteboard can be useful here, so that all can see the ordered agenda. As each issue is examined in greater detail, additional information is shared between the two sides, and the precise areas of conflict are clarified and refined. At this stage the lawyers ask open-ended probing questions in an effort to understand the “interests” underlying the “positions” of each side. The interests are the specific needs and concerns of each party, as opposed to their opening positions or demands (e.g., needs vs. wants).

IDENTIFYING INTERESTS

Interests may exist on several levels:

1. Substantive (e.g., “I need $X monthly to pay my rent) 2. Psychological (e.g., “I need $Y to validate that I am a worthwhile human

being), and 3. Procedural (e.g., “I need to participate in the determination of the support

payment in order to feel that the amount is fair”).

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By identifying the underlying interests, the lawyers move the parties away from entrenched positions, toward more creative, mutually acceptable solu- tions (e.g., the psychological need for dollars to validate self-worth may be satisfied in ways other than money).

INTEREST-BASED NEGOTIATIONS

Having identified the underlying interests of each party, the lawyers and parties together attempt to formulate solutions that maximize the identified interests. Generally, this is done with each lawyer breaking into separate caucus with his or her own client. During the caucus, the lawyer reviews and revises the starting settlement position, based upon the new knowledge and information that has been shared during the earlier part of the session. Having had an opportunity both to vent and to hear the other side, perhaps for the first time, each of the clients is generally in a much more positive mood for settlement. The two sides then reconvene for further discussions. Having moved forward in their negotiations, they may decide to caucus once. again to resolve any outstanding issues. Occasionally, the two lawyers may wish to meet separately from their clients. When the parties are still at impasse, mediation techniques such as “brainstorming” may generate new creative solutions. Brainstorming is a technique by which the parties generate as many solutions as they can imagine, in a free-flowing uncensored stream of consciousness. Only later are the proposed solutions examined critically, with some being discarded and others improved.

Alternatively, the participants may decide that additional information is necessary to break an impasse. Homework may be assigned to each side and a date set for a further settlement conference. When the parties have reached agreement on all issues, it is generally advisable to commit the terms of the agreement to writing in the form of minutes of settlement. These can then be signed by both parties and witnessed by their counsel. In some cases, the minutes are later incorporated into a more formal document, such as a separation agreement or court order.

CASE EXAMPLE WALKER K WALKER

Mr. and Mrs. Walker, a married couple in their mid-30s, were married for 10 years with no children. Mr. Walker, a classical musician, plays with the local symphony and was frequently away on tour with the orchestra. ME. Walker worked as a librarian during the earlier part of the marriage and most recently

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was engaged in completing her Ph.D. in English. She was approximately half-way through her dissertation when Mr. Walker announced 7 months ago that he wished to end the marriage. Mr. Walker had had an emotional involve- ment with another member of the orchestra. The affair had ended, but he was nonetheless determined to leave the marriage. Mrs. Walker was distraught and extremely angry, to the point that she was completely unable to work and concentrate on her thesis. Since he moved out of the apartment, Mr. Walker had been providing support to his wife but was going deeper and deeper into debt. Both of the parties consulted solicitors, and there had been an exchange of correspondence and offers to settle. On behalf of Mrs. Walker, her lawyer was making what appeared to be outrageous demands, far beyond what Mr. Walker had the resources to meet. The demands were set out in aggressive and inflammatory language that Mr. Walker found upsetting. He attempted to communicate directly with his wife, who said that all negotiations were to be conducted through her lawyer. Mr. Walker felt completely frustrated in his attempts to achieve a reasonable settlement. In view of their limited resources, he did not see court as a viable option.

Mr. Walker’s lawyer proposed a four-party settlement conference. Mr. Walker readily agreed. The option was presented to Mrs. Walker’s solicitor. She was extremely skeptical and stated that Mrs. Walker would not want to be present. The meeting was set up on the understanding that Mrs. Walker would be available on the premises but would not have to meet directlywith her husband.

In fact, as it turned out, both Mrs. Walker and her solicitor were present for the commencement of the meeting. Mrs. Walker’s solicitor took a very aggres- sive and adversarial stance, posturing for the benefit of her client. The husband and his solicitor did not respond by defending but suggested that perhaps some things needed to be discussed first before getting into the heart of the settlement discussions. The husband acknowledged directly to his wife that his decision to terminate the marriage had affected her deeply and that he was committed to seeing her through her Ph.D. thesis. The wife responded positively. When the wife’s solicitor attempted to cut off the husband and wife communications, the husband’s lawyer suggested that it was important for both lawyers to allow the parties to clear the air, before leading them through a discussion of the issues. The wife then expressed some of her hurt. The husband responded with some of his own perceptions of the marriage, without in any way blaming or accusing the wife.

The lawyers then proceeded to identify the outstanding issues between the parties as raised in the correspondence. The parties were encouraged to share relevant information with each other. This assisted each to gain a clearer perception of what was important to the other and why.

Following this exchange, the lawyers and their clients caucused separately. In caucus, the husband volunteered to sell one of his musical instruments to provide a lump sum settlement for the wife. This would provide support so that the wife could complete her Ph.D and become self-supporting. It was also a mon-

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etary recognition of the wife’s contributions toward the husband’s small busi- ness venture, which had been a contentious issue raised in the correspondence.

The parties and their solicitors reconvened, and the new option was pre- sented and accepted with further terms and modifications. The lawyers drafted minutes of settlement, which were later incorporated into the divorce judgment on consent. The parties left with a better understanding of each other and a feeling that they had treated each other fairly. Unnecessary and costly litigation had been avoided, and the lawyers had established a cooperative relationship for future negotiations on other files.

HELPFUL HINTS FOR CONDUCTING FOUR-PARTY SETTLEMENT CONFERENCES

1. Opening. The lawyers should set a positive tone for the conference by stating a mutual commitment to settle the outstanding issues, that is, “We’re here to find solutions to the issues and to avoid escalating the conflict be- tween you.”

2. Controlprocess. The lawyers must at all times control the process of the settlement conference. Like co-mediators, the lawyers facilitate direct communications and expression of feelings between their clients. If this gets out of control, the lawyers intervene to get the parties back on track. The lawyers also need to know when to back off and avoid talking “for” their clients. In the event that this happens, it is important that the lawyers redirect the process to the clients, by saying something like “Now let’s hear from Mary and John.”

3. Remain task oriented. Once the clients have had an opportunity to express their feelings underlying the dispute, the lawyers move them into a problem-solving mode by clarifying issues and helping them to identify their underlying interests. If one of the lawyers moves too quickly toward solu- tions, the other can back up and slow down the process, for example, “We seem to be getting ahead of ourselves. Let’s back up and hear some more about.. .”

4. Impasse. If there is no agreement by the end of the first four-party conference, this does not necessarily mean that no consensual agreement is possible. It may be possible to keep negotiations open by comments such as “We need more information before we are able to discuss concrete terms of

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settlement” or “We need more time to reflect on the proposals, let’s arrange a follow-up meeting in two weeks time.”

5. Time. The lawyers should ensure that they allow enough time for the four-party process to evolve. This means a minimum of 2 to 3 hours of uninterrupted discussions.

6. Reaching agreement. The meeting should always end with something in writing. If there are no minutes of settlement, then a summary of the partially agreed terms or agreed next steps should be committed to paper.

CONCLUSION

The four-party conference is a valuable settlement option in many dis- puted family law cases. Using techniques borrowed from mediators, two lawyers can act together to facilitate cooperative problem solving between their clients. Even when only one of the lawyers has mediation skills, he or she can use these skills to have apositive impact upon the course of settlement negotiations.

Judith Ryan, J.D., M.S.U!, is an attorney-mediator in private practice in Toronto, Canada. She has written numerous articles and completed an analysis of language and the need for change for the Canadian government. She is ako a former president of Family Mediation Canada.