Meet Pacific ADR Mediator/ Arbitrator Rick Gaustchi!
Rick Gautschi has extensive employment litigation experience, including class action matters, primarily having represented employees. However, his business background, an MBA and Ph.D in business administration, enables him to effectively communicate with employers. Rick has also taught Negotiation and Negotiation Ethics at the UW Foster School of Business.
He has taught more than 125 sections of courses including: Business, Government, and Society; Negotiation; Organization Theory; Decision Making; Business Ethics; and Introduction to Law. As a practitioner of the Socratic Method, Rick developed an acute ability to listen, facilitate, and guide discussions. Rick applies the skills that he has acquired as a teacher, a social scientist, and a litigator in an effort to facilitate a mediation process that includes creative problem solving in which both parties to a dispute are actively engaged.
What types of disputes have you handled?
Rick: Although my law practice focused on employment disputes, I am comfortable mediating any type of civil litigation matter.
What is your mediation style?
Rick: I would describe my style as a combination of facilitative and educational. Facilitative because I see my role as one of helping the parties to a dispute talk to teach other in an effort to arrive at a mutually satisfactory resolution to their dispute. Educational because, similar to what I have done in the classroom, I seek to help the parties enhance their decision making processes in order to arrive at their own resolution. Although mediators often employ an evaluative approach, I refrain from doing so. I am aware of numerous studies showing that lawyers are poor predictors of the outcomes of litigated disputes. There is no reason to believe that my prediction skills are an exception..
What was your most memorable mediation experience?
Rick: A pro bono mediation that I did for the EEOC several years ago comes immediately to mind. Although I had completed several mediation skills training programs, none of those contained any reference to the mediator’s use of decision analysis as part of the mediation process. I began by applying what I had learned in the skills training programs. Because the parties showed little movement from their initial positions, I decided to explain decision analysis and how it might be helpful to the participants, all of whom were experienced lawyers. Several informed me that they found my explanation of decision analysis and how it applied to the dispute to be very helpful. Shortly afterwards, the parties arrived at an agreement.
What was your worst ADR experience and why?
Rick: I once mediated a very low stakes dispute in which the parties were unable to come to a resolution. After a relatively short time, it became clear to me that the two sides were insistent that only a complete capitulation by the other side would suffice. The situation reminded me of the standing joke from my days as a tenure track academic:
Question: Why are the arguments in faculty meetings so heated?
Answer: Because the stakes are so small.
What do you like best about ADR/law practice?
Rick: Assisting the parties in their efforts to discover a resolution of their dispute without having to incur the financial and emotional/psychological costs that the civil litigation system imposes.
What are some things to keep in mind before or during mediation?
Rick: First and foremost: Mediation is not litigation. As in any negotiation, whether facilitated by a mediator or conducted solely between the parties, agreement occurs only when the parties to a proposed agreement perceive the terms of the agreement to be more valuable to them than what they might get by proceeding with the litigation.
Second, the longer the parties are involved in a mediation session, the poorer the quality of their decision making processes are likely to become. Fatigue and declining blood glucose levels are inevitable. Consequently, it is often useful for the parties to be able to eat from time to time during lengthy mediation sessions.
Do you have any useful tips for selecting a mediator that best fits your case?
Rick: Don’t make the mistake of inferring that someone who, for example, has decades of experience as a trial judge is consequently an effective mediator. Judging and mediating require different skill sets. Similarly, extensive experience as trial lawyer does not automatically translate into skills as a mediator. Again, mediation is not litigation by another name. The fundamental job of the mediator is to help the parties to a dispute engage in joint decision making that results in a mutually satisfactory resolution. To fulfill that role the mediator must, for example, be willing to listen to the parties and to help them articulate what is important to them. Doing so can require an extraordinary degree of patience and persistence on the part of the mediator.