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Mediation Advocacy: The Litigation Narrative

In the middle of the journey of our life I came to myself within a dark wood where the straight way was lost. Dante Alighieri

When the journey turns from litigation to mediation, it’s helpful to remember that we litigators are classic Hollywood hyphenates — the writers-directors-actors of our client’s story  — and that our client has generally moved more and more into the background as the “executive” producer, i.e., the money guy with the power of the final cut.

Since we’ve been building our narratives of right and wrong, good and evil, black and white for a pretty long time before mediation rolls around, it’s good for us — as authors of our clients’ morality tales — to step back for a moment and observe the inevitable structure of the litigation “story” we’ve been so busy writing.  

To help us do that, I’m going to walk myself and my readers through a fascinating article with an incredibly boring title — CLIENT COUNSELING, MEDIATION, AND ALTERNATIVE NARRATIVES OF DISPUTE RESOLUTION, from the Clinical Law Review (10 Clinical L. Rev. 833 Spring 2004) by Law Professor Robert Rubinson.

For full article, click on the link above.  The excerpt below concerns the standard litigation narrative that we make our living writing.

Let’s start as [legal] narrative itself starts, with the Steady State and the Trouble that upsets the Steady State: The world is in order. People are acting towards each other as they should, or at least no one is straying too far from the norm. And then . . . something happens. One party claims that another party did something to generate disorder, to make the world out of joint. In other words, Trouble disrupts the Steady State.

In a breach of contract case, the parties enter into a contract (Steady State) and then one party breaches the contract (Trouble). In a tort case, plaintiff is walking on the sidewalk (Steady State) and then slips and falls (Trouble), or plaintiff is having a beer (Steady State) and then defendant slugs plaintiff (Trouble). In a criminal case, a bank is doing what banks ordinarily do (Steady State) and then is held up by a defendant armed with a gun (Trouble).

The defendant claims either that: 1) nothing happened, and an attempt to demonstrate otherwise is itself an example of disorder and thus of Trouble, and/or 2) something did happen to generate disorder, but it was the other party that did it.

So who is right and who is wrong,  . . . . who is the real source of Trouble? The assumption that one party is right and one party is wrong is not open to question; litigation is based on a shared norm among all participants (litigants, judge, jury) that only one of the litigants is right about “what happened.” Since there is only one true source of Trouble, parties expend Efforts to demonstrate to the finder of fact that their story is the “right” one. 

These Efforts are subsumed within the procedures of litigation itself. Parties are successful in their Efforts to the extent the judge (or jury) decides that the origins of Trouble are as a party claims. Thus, the end result of successful Efforts is that a judge or jury Restores the Steady State by granting relief to the party whose version of Trouble is the right one.

To recapitulate, parties first come to litigation with divergent versions of Trouble. The court’s job is to finish the story the “right” way so that a party’s story makes sense. A bare bones representation of this narrative scheme would be as follows:

Joe’s Story Steady State [already happened]: Dave and I were talking.

  • Trouble [already happened]: Dave punched me.
  • Efforts [is happening]: I am showing and will show that Dave owes me money for my injuries.
  • Restoration of Steady State [should happen]: Dave pays me money.
  • Coda [should happen]: Justice is done.

Dave’s Story Steady State [already happened]: Joe and I were talking.

  • Trouble [already happened]: Joe swung his arm to punch me. As a reflex, I hit him.
  • Efforts [is happening]: I am showing and will show that this case must be dismissed.
  • Restoration of Steady State [should happen]: This case is dismissed.
  • Coda [should happen]: Justice is done.

Once the litigation is concluded, the “true” plot of the story can now be told completely and definitively. Either Joe’s right, or Dave’s right, or some combination thereof is right. Such a story – its fuzziness and indeterminacy stripped away – is familiar to every first-year law student . . . . 

Even this brief tour highlights an important dimension of litigation. The engine that drives litigation is a kind of anxiety about story completion. “Facts” need to be “found.” The goal of an advocate is to persuade the decision-maker that the advocate’s story is the right one, and if the advocate’s story is the right one, then the “ending” – that is, the Restoration or Transformation of the Steady State – flows from it. In this sense, the Efforts are a contest about who caused the Trouble, and “finding” who did determines what the proper Restoration should be.


Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >

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