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Mediate.com

Some Good Questions

by John Lande
December 2014

ADR Prof Blog

John Lande

In 1998, commenting on the hot controversy about the “Rand Report’s” finding that certain mediation programs did not save time or money (measured in terms of lawyers’ work hours), Professor Craig McEwen argued that it was the wrong question to ask whether “mediation works.” Critics of the Report had argued that its methodology led to a false impression that mediation doesn’t work. McEwen suggested that “Instead of asking whether mediation works or not, we need to examine how and why parties and lawyers “work” mediation in varying ways.” Craig A. McEwen, Managing Corporate Disputing: Overcoming Barriers to the Effective Use of Mediation for Reducing the Cost and Time of Litigation, 14 Ohio St. J. on Disp. Resol. 1, 3 (1998).

I have a similar reaction to the title of the Cardozo symposium, “Is Mediation a Sleeping Beauty?” and the descriptions of the presentations in Lela Love’s post (via Art).

A few caveats before I explain my thinking. I understand the value of a provocative symposium title and this one obviously captured people’s imaginations. Of course, it is very hard to capture nuances in a single sentence summary or even in fairly brief symposium presentations. The symposium articles may address some of my concerns.

The presenters are, indeed, luminaries in our field and many are good friends who I like and respect a lot. It sounds like the symposium was stimulating and great fun. I’m sorry I wasn’t there.

I agree with many of the concerns that presenters expressed. When I was in private practice, doing mostly divorce mediation, I used procedures I think they would say are desirable (if not beautiful). Some time ago, I wrote an article expressing concern about what I called “liti-mediation,” which I argued could decrease the quality of parties’ decision-making and consent. I have written about bad faith in mediation. Like some presenters, I favor things such as the use of joint opening sessions, direct party participation, focus on the full range of parties’ relevant interests, and limitation of use of mediator evaluations as much as appropriate.

Considering all this, what’s my problem? (There are many theories about this but we will save them for another time.)

In brief, this sleeping beauty discussion (at least as described in the summary) oversimplifies a very complex phenomenon and turns it into a counterproductive morality play of good and evil. I think it is counterproductive because I think that it mischaracterizes the problems, risks alienating needed allies, and can lead to less effective strategies for solving the problems. Since I didn’t attend the symposium, I don’t know how much my concerns would apply to particular presentations (and thus the “shoe may not fit” some of them). Although my concerns may not apply to some presentations, I have heard many people in our community express these ideas.

First, mediation is not a single uniform thing – and it is not an actor with independent agency. The term refers to an incredibly diverse range of procedures that people use in various ways. Echoing Craig McEwen, instead of asking whether mediation is a sleeping beauty, I think it would be more helpful to ask why people use “it” in more or less beautiful (or useful) ways and how we can help people use “it” better.

I suspect that most of us would agree that the mediation process differs greatly depending on many factors including, but not limited to, the subject matter, the sophistication of the parties, the nature and extent of their preparation, their interests, their goals for the process, their procedural preferences, the prior relationship of the parties, any desire of the parties to have a future relationship, whether and how lawyers participate, the mediators’ general goals and preferred approaches, and the legal and mediation practice culture. So I think that we should normally avoid generalizing about mediation as if it is a single, uniform process.

I wonder if anyone at the symposium mentioned the truism that “beauty is in the eye of the beholder.” Mediations that some would call a beauty, others would call a beast and vice versa. While most of us might agree on the extremes, I suspect that most mediations are somewhere in “the middle” with much less consensus about the amount of beauty or lack thereof.

Although the Sleeping Beauty story provides a vivid metaphor that you might say is just a hook for discussion, it reflects a polarized vision of good and bad that I hear a lot in our community. “Our” preferred version of mediation is the virtuous, beautiful princess and the “other” version is the bad, ugly step-sister. In this fairy tale, “we” are the chivalrous heros and heroines who rescue sleeping beauty from the villain, often cast as lawyers and/or the courts.

In an article, I wrote, “Procedures are inanimate phenomena that should be means to ends, not ends in themselves. Yet many of us make fetishes of our favorite procedures as if they have some extra measure of goodness. These procedures are incredibly malleable and can yield better or worse effects depending on many things, especially how people use them. . . . Rather than making procedures the protagonists in these stories, we should celebrate humans and their wise and caring actions when working with conflict. This includes judges and lawyers who choose between the various procedural options (including, but not limited to, trials) to promote appropriate goals for litigants and societies. Judges can make some of their best contributions by helping design and manage disputing systems as well as trying cases. . . . Mediators and arbitrators are often heroes, helping people work through conflicts. . . . Instead of investing so much of our cultural resources in myths about our most (or least) favorite procedures, we should invest more in realistic stories honoring people who work together to make good choices in using procedures to satisfy people’s interests.”

Like it or not, mediation conducted in the shadow of the courts relies on the cooperation of lawyers and judges. So, purely as a matter of self-interest, we do well not to demonize or alienate them. Moreover, I think that general characterizations of them as subverters of “good mediation” are inaccurate oversimplifications of their perspectives, which are quite diverse.

I would start with a rebuttable presumption that lawyers and judges in a community generally are trying to perform their functions as well as possible given their perceptions of their goals in their roles and their particular practice culture. Mediators can work with lawyers in individual cases to negotiate appropriate procedures as recommended by the ABA Section of Dispute Resolution Task Force on Improving Mediation Quality. Following one of the Task Force’s key recommendations, parties and lawyers can prepare for mediation by using the “mediation guides” that the Section developed. (FYI, I was a member of the Task Force and helped draft the mediation guides.)

Mediators have a hard time when they work in practice cultures with norms different from the mediators’ preferences. These situations could benefit from dialogues between representatives of the different stakeholder groups seeking agreements about procedures and norms that satisfy the interests of the various stakeholders, especially the parties. In such a dialogue, mediators might ask questions such as the following: What are the interests of lawyers and courts in mediation? What do lawyers and judges think are the parties’ interests? Are lawyers open to considering that some parties may have interests in addition to resolution and maximizing their partisan outcomes? Under what circumstances would lawyers be open to using particular mediation procedures? How could lawyers and courts work with mediators to promote the most productive mediation practice culture and norms?

I’ll be curious to read what the symposium speakers recommend to revive their preferred visions of mediation.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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