I was once contacted by one of the writers for the hit series House who wanted to know what the parties may do doing a mediation. After explaining several current mediation “processes” to him, I said this.
The beauty part is that you can actually do anything you want during a mediation. There are no rules.
Then we had a great conversation about what Dr. House might do in a mediation, none of which made it to the screen because it was too wild to appear there But we had a lot of fun.
Mediation advocacy is not too much different from trial advocacy except that the page is blank. The stage is empty. The computer hasn’t yet booted up. The first word hasn’t been penned. None of the characters has spoken. The sun is not yet up.
As our former national poet laureate Billy Collins has written in his great poem Aristotle,
This is the beginning.
Almost anything can happen.
This is where you find
the creation of light, a fish wriggling onto land,
the first word of Paradise Lost on an empty page.
Think of an egg, the letter A,
a woman ironing on a bare stage as the heavy curtain rises.
This is the very beginning.
The first-person narrator introduces himself,
tells us about his lineage.
The mezzo-soprano stands in the wings.
Here the climbers are studying a map
or pulling on their long woolen socks.
This is early on, years before the Ark, dawn.
The profile of an animal is being smeared
on the wall of a cave,
and you have not yet learned to crawl.
This is the opening, the gambit,
a pawn moving forward an inch.
This is your first night with her, your first night without her.
This is the first part
where the wheels begin to turn,
where the elevator begins its ascent,
before the doors lurch apart.
Mediation is a writers’ blank page.
Writing is easy. All you do is stare at a blank sheet of paper until drops of blood form on your forehead. – Gene Fowler
Aside from writers’ block, I have no answer to the question why there isn’t more great mediation advocacy. But I can steer you in its direction. Take a look at Stephanie West Allen’s interview with Diane F. Wyzga — an attorney, nurse, and a professionally trained storyteller, who helps lawyers tell their clients’ stories to juries. Read the entire interview. I provide only a tantalizing excerpt below. Then we’ll talk more about mediation advocacy next week. As attorney Wyzga explains:
What could I teach a lawyer about storytelling? Robert McKee had the answer:
Storytelling is the art of expressing meaningful change in the life situation of a character in terms of values to which the listener reacts with emotion.
This is what lawyers do all the time! I just needed to overcome law school’s linear analytical training that says he who dies with the most facts, wins. And show lawyers how we listen to stories.
In the grip of a heartfelt story artfully told, the factfinder listener’s mind is fully engaged creating a parallel world of social judgment based on their world views and experiences. Now the attorney and factfinder are one: working in concert in a cooperative enterprise considering options, possibilities and outcomes.
As of a recent verdict in June, I have 11.11 million reasons why I continue to believe that a heartfelt story artfully told using language with power, passion and precision will engage your jury every single time.
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