Shapiro described his particular
variant of GCM based on his experience while acknowledging that other Guided
Choice Mediators’ processes may differ from his in various ways. Shapiro’s brand of GCM focuses on ensuring
that parties have reasonable expectations and appropriate settlement authority
prior to arriving at a mediation. Some
of the strategies to help accomplish these noble goals are (i) early mediator engagement, (ii)
mediator facilitation of information exchange, (iii) mediator involvement with
insurance issues (particularly important in construction defect cases,
especially those with multiple defendants), (iii) pre-mediation ex parte
meetings, and (iv) mediator participation in risk analysis. These strategies
are not typical in the more traditional/historic approach to mediation in which
mediation is scheduled based on a scheduling order, mediation statements are
sent to the mediator roughly a week before the scheduled mediation (and
sometimes not even shared with anyone other than the mediator), and the parties
speak with the mediator for the first time on the day of the mediation.
While any experienced lawyer has likely suffered through lengthy sessions where mediators must provide a
reality check to the other party (or your own!), GCM moves such conversations,
or at least their initial stages, to pre-mediation ex parte meetings. Shapiro opined on how this kind of risk analysis
is crucial to the GCM, both before and during the mediation. While similar in concept to the evaluative
mediator, the Guided Choice Mediator takes a facilitative role in leading the
risk analysis and does so preemptively rather than waiting for an impasse. At the same time, Shapiro acknowledged that a
guided choice mediator will have to be evaluative at times. In this sense, it is critical to the success
of a GCM that the parties select a mediator who is willing to take an active
role in risk analysis and who can effectively challenge each parties’ positions. Likewise, parties must come to the table with
sufficient knowledge and analysis to meaningfully participate in the risk analysis
process.
In the right situation, with
the right mediator and willing parties, GCM can facilitate a rational,
well-informed settlement as early as possible.
It is an inherently flexible process that the parties can customize to
the unique needs of a specific dispute to drive each other towards rational,
reasonable positions. However, Shapiro
cautioned that GCM will have limited success if the parties are not willing to
engage in the process or spend the time and resources needed to go into the GCM
with sufficient knowledge and settlement authority.
Thank you to Clifford Shapiro
for the perspective and explanation of GCM.
Author Douglas J. Mackin is a construction attorney with Cozen O’Connor in Boston, Massachusetts. Doug counsels owners, developers, contractors, and subcontractors in all phases of a construction project, from contract negotiation through to completion, including disputes, litigation, and arbitration. Doug can be contacted at dmackin@cozen.com.
