This episode of Mediation Tales involves a case from long ago before fracking was a big thing in the oil fields of eastern Ohio.
FACTS: While I was with the Fraklin County (Ohio) Common Pleas Court, I was assigned to mediate a case involving allegations of one oil drilling company stealing from another by drilling curved wells that crossed beneath oil lease boundaries. Defendant counterclaimed with similar allegations back at the Plaintiff. Both attorneys were specialists in oil and gas law, and I was an absolute rookie. Each attorney had telephone access to their clients.
The mediation was progressing well even if I wasn’t understanding all the terminology. When things got really technical, I made a change in the conference setting. Instead of the usual mediator at the head of the conference table with opposing sides sitting face-to-face across from each other, I switched to an arrangement where I sat on one side of the table and the two attorneys sat together on the other side. And to complete the change in environment, I put the large oil lease plot map we had been referring to on the table facing counsel.
And I let them talk. And talk some more.
Working side-by-side and speaking to each other in the specialized language of oil drilling, they became very cooperative with each other and tackled the case with a problem-solving approach. I said next to nothing, but I could pick up on statements like “If your client could [insert incomprehensible oil law language here], my client might trade that for [insert more oil law verbiage here].” Hearing about “if, then” trade-offs, I could tell they were making progress even if I didn’t understand it. They began drawing lines on the map and discussing royalties, leases, and other financial terms. More technical language, of both the law and oil varieties, went back and forth, and eventually they announced they had a deal.
We had a discussion about who would prepare the first draft of the multi-part settlement agreement, and a timeline for submission of a dismissal entry to the judge. Case settled.
To this day, I do not know or understand what they agreed to, but both sides seemed satisfied, so I construe it as a win-win agreement.
MORALS: (1) The best combination for a mediator is process skills and subject matter knowledge; if you only have one, process skills are more important. You should not be reluctant to mediate a case if you don’t know the subject matter. (2) Seating arrangements affect how parties and counsel interact with each other. Side-by-side talks can reduce tensions and foster cooperation. (3) A visual aid like a map or chart shared by the participants can clarify the proposals being made and promote an atmosphere of joint problem solving.