Mediation is becoming more accepted than ever. And for good reason. Done well, it can be an important process for resolving cases.
We’ve long had settlement conferences in the courts. Those conferences are successful in many cases. A settlement conference can help counsel evaluate their positions and reach compromises that end cases.
But not always. The time and resources available in judicial settlements are limited. Especially in the state courts, parties are not directly involved in the conferences. Judges are rarely able to help the parties identify their interests, needs and goals. Thorny issues and entrenched positions may need more – more time and effort to help parties reach resolution. Mediation can be that more.
As attorneys consider whether to mediate, it’s helpful to know what to expect in a good mediation. The mediator seeks to identify and accommodate the parties’ interests. Unlike many settlement conferences, it is essential that the decision-makers on both sides are directly involved.
Lawsuits are framed in terms of money. Very often, the only legal remedy for a wrong is an award of money. The plaintiff wants some, the more the better. The defendant resists. Issue joined.
But there is always a range of interests and concerns on both sides. “It’s never just about money,” said Linda Singer of the Center for Dispute Settlement. She has promoted the concept of mediation for decades, written extensively about it, and trained legions of new and not-so-new mediators.
She’s right. Think about any major case and look a little deeper than the prayer for relief and the affirmative defenses. In an employment discrimination case, for example, the plaintiff may feel disrespected and betrayed by a company he gave his full loyalty and effort. The manager who is accused of discrimination may be appalled to be labeled a racist or a sexist (or both). In a malpractice case, the plaintiff was not only injured, but the trust she placed in her doctor (or lawyer, or accountant) was breached. The professional she is suing feels wrongly accused and is concerned about his professional reputation. For both sides, filing the complaint is a declaration of war. The battle is on, and the enemy must be vanquished for reasons separate from the money claimed.
Even in commercial litigation, there are individuals who made the decisions that gave rise to the dispute. They may believe their professionalism and even their future employment may be at stake. Everyone who represents a big company knows that the corporation must be personalized and humanized. So, instead of telling the jury, “My client, Megabucks, Inc., did what was just good business,” we argue, “The folks down at the warehouse had some hard decisions to make.” That’s not just good argument; it’s true. Real, feeling people made decisions that are now being challenged.
In many cases, warring companies may need each other in the future. Maybe a software developer did not produce what was ordered this time (and maybe it did), but it may still be the best alternative for the disgruntled customer’s next project. So resolving today’s dispute may involve some agreement about tomorrow.
At some level, parties are open to the concept of a settlement when they agree to mediate. Still, the parties may differ dramatically on the outcome they anticipate. Mediation seeks to get the parties beyond the merits of their dispute, to focus on their underlying interests, and to help them reach an agreement that, perhaps through a series of compromises, meets their interests. As advocates, we advise our clients of the risks of litigation. A mediator can help parties focus on those risks by helping them think about the alternatives to a negotiated settlement and how to get to that settlement.
The most determined litigants bring unbridled passion to the beginning of a case. That passion can be reinforced by their investments of time, money and emotion as the case progresses through motions and discovery. A good mediator can help the parties realize that there is no guarantee that those investments will be repaid and that reaching a settlement can be the prudent thing to do. The process requires a sustained effort by everyone involved. It helps the parties focus on their future, seeking an acceptable way to put the nasty dispute behind them and avoid the additional time, expense and uncertainty of litigation.
As Professors James A. Stark and Douglas N. Frenkel recently wrote, “The methods mediators use … are almost limitless in their variety. Mediators persuade by asking questions and by making statements. They persuade by trying to thaw damaged relationships and cool down heated emotions. They persuade by trying to engage the disputants in cooperative brainstorming activities. They persuade by ‘conditioning’ the parties through flattery and humor or by using ‘just between us’ type statements in private caucus.” 1
Mediators may approach their task in different ways and they may adjust their approach based on their perceptions of each case. They seek to identify the barriers that stand in the way, and the interests and relationships that can serve as the basis for constructive conversation. But always the goal is the same: to help the parties come to their own resolution.
As advocates, we can best serve our clients by embracing the process and helping our clients focus on their best interests to try to achieve that resolution. For the lawyer, litigation can be fun and, frankly, remunerative. But for the client, a mediated settlement is often the best result.
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