The other day (March 3, 2008, p. 6) the Los Angeles Daily Journal carried an article by Robert A. Steinberg (a mediator with ADR Services) entitled “Mediation Requires Deal Makers, Not Decision Makers.” His theme is that “mediation is a facilitated negotiation.” (Emphasis original.) As Mr. Steinberg explains, “negotiations develop based on the skilled application of leverage. The quality of one’s legal case is one leverage point but hardly the only one and sometimes not even the dominate one.” Thus, as Mr. Steinberg notes, while arguing the law and facts at a mediation is the approach often taken by lawyers, it is not always the best approach to use at a mediation. Rather, the lawyer must consider the non-legal issues as well.
A mediator is a facilitator, not a decider of fact and law. Thus, as hard as an attorney might try to “convince” the mediator that “justice” is on the side of her client, it is a futile exercise because quite often there is far more going on (or a lot more at stake) than just the facts and the law.
To resolve cases, the parties must also focus on practicalities: their non-litigation or non-legal interests. How is the litigation affecting their business interests? Is it keeping them away from running the business and making money? Is it interfering with some potential event such as a merger, sale, an initial public offering, et cetera? How is the litigation affecting the tax and accounting aspects of the business? How will any potential settlement affect the parties financially – in terms of taxes and accounting? The parties must also consider “the time value of money, the costs of delay, time away from business or personal pursuits, opportunity costs, trial anxieties, risk aversions. . .” (Id.) and a whole host of non-legal considerations. Sometimes, these other themes, in reality, will predominate over the facts and the law.
The job of the mediator is not to decide who is right and who is wrong: that is for a judge or jury at a trial. They are the ones who literally sit in judgment of the parties. Rather, the job of the mediator is to negotiate a settlement: to cause the parties to focus on much more than just the facts and the law; to get the parties to consider all of the non-legal “stuff” – the financial, physical, emotional, mental, business, et cetera aspects of the situation. For example, is the litigation taking its toll mentally, emotionally or physically on the parties? It is “stressing” them out? Is it causing disruptions in their marriage? Or relationships with others? How much longer do they want (or are able) to “put up” with such stressors?
Only when the parties address all of these “other” issues will they then be able to craft a deal that meets all of their needs and interests; not just the “legal” ones.
. . . Just something to think about.