Appropriate Dispute Resolution (ADR) is processes all attorneys have heard of but not enough understand or utilize to the best benefit of the client. As a practical tool for efficient and effective settlement or resolution of conflict, mediation is often selected as the favorite ADR method. It utilizes a neutral third party who does not decide or adjudicate for the parties but encourages control and self-determination. With the assistance and gentle guidance of the mediator, the parties share facts and feelings, perspectives and aspirations, interests and needs, all in the presence of counsel. Having experienced personally the facts and feelings and having developed a particular point of view regarding the present state of the dispute, the discussion of the information sharing process in mediation can have a powerful emotional impact on the parties. Counsel should encourage the client to embrace the process and engage the cathartic benefits of listening to learn and speaking to understand. All conflict has a humanistic component, usually a hostile or negative factor not dominating our existence but certainly a part of it. How the negativity of conflict rooted in adversarial, rights-based, positional bargaining, is handled or vented is the difference between a fully informed client and a disillusioned one.
People are naturally curious, and human behavior is motivated by other fundamental desires such as honor, rejection, vengeance, social prestige, and power. To knowingly participate in a bargained-for outcome, based on interests and needs, expressed and conveyed among the parties, in a non-threatening and learning environment can only be a satisfying experience when the pain of the negative and hostile conflict subsides through resolution. Why should the attorney interfere with the positive process of possible transformation but certainly understanding, enough, at least, to make any decision sound and proper? If there is emotional pleasure in the feel-good dialogue of listening to understand versus listening to respond, the client has earned the occasion. Conversely, if the client realizes, through persuasion or clarification, that the sting of justice can penetrate even thick skin, is this not a part of the healing process? The closure which all crave after a conflict has gone rogue is in the hands of the principals.
The value in the interactive dynamic of the resolution process is not so much the outcome as the emotional investment in getting there. Parties want to settle the dispute that engulfs them; they want to get on with their lives or business; and they want to know they were right in the thing which brought them to this point. Through mediation all parties can achieve a sense of success, satisfaction, and fulfillment in an emotionally charged situation
Counsel can assist this new beginning by assuming the role and character of personal advisor, supporting the emotional component of resolution without dissipating the legal grounds upon which the claim or defense is nestled. Legal rights, duties, or obligations can and should be flexible or malleable to the needs of the parties they serve or affect. It is essentially important to identify those fundamental and necessary needs of the clients without distorting justice or the rule of law. Legal issues in any case in controversy can be identified by competent counsel, but what of the personal issues that drive the motivation to settle? The mediation process is not an exercise in mitigation or compromise more than it is collaboration of exchanging insight and interests of vital importance to the parties. This is not to say that legal dogma or interpretation is not important, but only that it is not as important as what does a party need to resolve this dispute? Surprisingly, that response is not always money. Regrettably, as the conflict evolves and positions harden clients often want revenge or to hurt the other side and money is a measurable manifestation of that emotion. The primary remedy of the court process is money damages in the form of legal or equitable relief. Mediation offers that remedy also, along with emotional relief. Vidal needs are often masked by legal argument, not especially to obfuscate the prime settlement accord, but posturing can cloud the personal function of negotiating true and real emotional satisfaction.
When the attorney accompanies the client to mediation with realistic possibilities for settlement and is willing to listen and understand why the opposition claims needs fulfillment, the parties can negotiate without threat, impulse, or anger. There can be satisfaction in relating why a proposed resolution is good or proper, without the limitations of rules and procedures. The fabled “day in court” can be replicated through mediation with the true parties in interest as primary participants, giving and taking with each other what they reveal as essential parts of any settlement. Giving the other side an important piece of its settlement needs contrasted but not jeopardized with your needs can also be highly, personally gratifying in the euphoria of settlement. When an arbitrator carves the settlement pie, doling out the pieces, the risk is that your vital piece may be given away. When a jury returns a decision with all or nothing riding on the outcome, your vital needs are at stake. Most regrettable of all, however, is the party who has prevailed in the rights based, adversarial system and comes away feeling a victim of the process? ` Legal counsel should be prepared to shift to personal counselor after need identification reveals bases for resolution. This holistic practice of law can be highly satisfying when the client is prepared to depart from the legal path to wander the creative trail of personal satisfaction. This can be difficult for a highly trained adversary, who sees clearly the legal outcome, but who cannot feel the joy of resolution in the client. We often practice paternalistic law, assuming we know best what is the interest of the client, but too often the client can be battered by it’s imposed best interests, and there can be no constructive conflict. Mediation can be and is the informed consent process, which empowers the client with self-determination and the ability to functionally participate in the quest for justice.
A recent study of thousands of California litigated cases revealed that many attorneys participate in costly decision error for their clients during mediation; 61% of plaintiffs and 25% of defendants...By Jack Goetz