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Is an Adversarial Process Our Best and Highest Good? The Case for Early Mediation

Dispute Settlement Counselby Michael Zeytoonian.

Disputes are a part of life.  On all levels, in most relationships, we disagree about things. Disputes come up between spouses, siblings, parents & children, business partners, political parties/views, employers & employees, economic classes, races, genders, age groups, ethnic groups, religious denominations, and on and on.  Unless we are mindless clones or in a controlled society, conflict is normal and natural.

The question is not whether we’ll have disputes, but how we handle them when they arise.

We often respond ineffectively. We let it get personal, let it stress us, hurt us, anger us.  We draw up partisan battle lines and then others who were not even part of the original dispute jump in and pick a side.  We act before we give the matter a second thought. Rational, reasonable logical thoughts seem to abandon us, or maybe we just ignore those thoughts because they are not emotionally-charged enough.

The fight is on, and we all seem to want to be a part of it. We allow ourselves to get polarized, pigeon-holed, labeled as part of one side or the other.  The dispute escalates.  But we are civilized now, so we no longer decide things with duels, fist fights or gunfights. We take comfort in the notion that we have evolved, so we believe.  We have set up a judicial system with lawyers, judges and juries to resolve disputes.

This issue is not what we now use to fight or how or where we fight.  It’s that we are still fighting.  We now fight by using an adversarial system in courts instead of guns in the street (though not always).  We have replaced guns and fists with lawyers (whom we often refer to as “hired guns”), who are taught this adversarial system in law school.  We use a staged battle to reach a good resolution.  Does that make sense?

In the words of the memorable Mona Lisa Vito (My Cousin Vinnie):

“No. It doesn’t. Good bye.”

Here’s how the adversarial legal system eventually gets around to using mediation.  One party begins the dispute by publicly stating (filing a lawsuit) that the other side is bad, wrong, unlawful, liable, negligent, etc.  The other side then defends itself and answers the claims, presents a defense and maybe makes some counter-claims back at the first party. And the fight is on, utilizing a judicial system designed to manage the adversarial process, and a set of rules the court gives them to do so, for the next two or more years.

In theory, the parties are spending this time strategically preparing for a trial that will determine who was right, wrong or neither.  I say “in theory” because the data shows that 97% of these disputes filed in courts end up settling and do not go to trial.  So all those people involved in all these filed cases spent two years (and sometimes more) fighting and getting ready for something that will only happen 3% of the times.

One reason that many of these cases never go to trial is because in many cases, after a couple of years of fighting in the arena called litigation, the parties agree to discuss settling their cases using mediators in a process called mediation.  Here’s how.  After they have finished preparing for this trial, but before this trial begins, the lawyers will discuss with their clients the idea of mediating the case and trying to reach a settlement (not a resolution), rather than run the risk and incur the expense and extra time of going to trial and putting their fate in the hands of an unpredictable jury.  They will urge their clients to now avoid something they spent the past two years or more and thousands of dollars preparing to do.

You’re starting to think what I am thinking, aren’t you?

Now, I’d like you to think about how eager the parties in this dispute are to work with a mediator to resolve their dispute at this point, when their friends, relatives, colleagues, society’s litigious mindset and the media has been urging them to keep fighting, when everyone they know has lined up behind one side or the other, and no one likes each other anymore?

How likely is it that these parties can come up with a good resolution when they, with the assistance of their lawyers who are trained in the adversarial process and not in dispute resolution, have been fighting for two years?

When they have spent thousands, sometimes millions, on this legal process called civil procedure, along with an immeasurable amount of energy, emotion and resources?

When opportunities that may have been there two years ago, along with the time, energy, resources, expertise and money they could have used, are no longer available?

Think of the situation as a whole pie at the outset of this dispute.  Along this adversarial journey of a couple of years, many of the pieces have been eaten, gotten stale or fell off the pie plate. Now there is only one piece left – a shrinking pool of money (maybe). And now, the pie owners come to a mediator to help them divide up the pie in some fair or meaningful way that will satisfy their needs.  When the mediator asks the parties and lawyers to show him the pie so he can help them work with that pie to resolve this case, there is only one piece left.  Ask yourself what the mediator can now do with this one piece, and what he might have been able to do two years ago, with the whole pie?

If you were the mediator, what would you be thinking?  “If you had called me and gotten me involved two years ago, I would have had a lot more to work with.  There would have been a lot less sunken cost bias, a lot less opportunity costs expended, and a lot less hostile atmosphere.  All I can do now is try to figure out a way that the parities get something out of this one, lonely, stale piece of pie.”

What do you think?  The next time you find yourself in a dispute, how soon would you want to get to mediation?  Early or later?  How much of your pie do you want to bring to the mediator to work with?


Michael A. Zeytoonian

Michael A. Zeytoonian is the Founding Member and Director of Dispute Resolution Counsel, LLC and is a lawyer, mediator and ombudsman. He is formerly a partner and now Of Counsel at Hutchings, Barsamian, Mandelcorn & Zeytoonian, LLP, in Wellesley Hills, MA. He specializes in employment law, business law, special education… MORE >

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