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The Mediator is the deal maker who concentrates on allowing the parties to accept a settlement that acknowledges both sides' desire for truth, but recognizes that playing the right/wrong game will not necessarily achieve a deal. As a result, the Mediator is in the awkward position of asking the parties to set aside their instinctive desire to prove the righteousness of their cases in favor of accepting a compromise that might be less than what they can achieve in court.
For a settlement to occur, the trial lawyer must begin the process of seeing herself as conflict resolver who happens to have a specialty in trial work. This process necessarily involves communicating in an environment where she must tolerate some amount of ambiguity, since settlement negotiations are rarely straight forward.
With this in mind, I was reading recently about a small tribe in Africa. This tribe was isolated for many years, and in their native language, they never developed a system of numbers. Their entire numbering system is one, two..then "many." Anything more than two is "many."
Now, in this system, if you had three children, you would say you had "many." If you had twenty, you would also have "many." It occurred to me what might happen if a member of this small tribe in Africa had to sort out an insurance claim there:
Imagine that an attorney has a client who suffered a fire loss and presents a claim to the insurance carrier.
The adjuster says to the client: "How many things were damaged in the fire?" The client says to the adjuster:
Now picture the confusion and frustration felt by both the adjuster and the client if they were speaking different languages. There is a communication breakdown not to mention cultural differences.
The adjuster is used to having an infinite number of numbers. The African tribe's system might seem ridiculously imprecise in this clearly exaggerated context. But the language of the tribe is such that they never even think of counting above two, even though there are infinite numbers of things to count.
The way clients experience our civil justice system, as it stands today, is very much like the language of that African tribe. We impose a system with only two outcomes - right and wrong- onto a reality where there are actually an infinite number of possibilities, or things to count.
This is why the process of mediating litigated cases is so profound. The process allows parties to consider all those possibilities, instead of leaving with only "one", "two".. "many." A trial lawyer who limits herself to "one" way of thinking limits her clients' settlement options.
Rarely is a case so cut and dried that limiting the way a trial lawyer approaches a case turns into an advantageous negotiation. Consider the story in which two people who can't agree come before a judge. First the judge listens to the plaintiff and says "You're right." Next the judge listens to the defendant and says "You're right." At this point the court clerk interrupts and says "Your honor, they can't both be right," to which the judge replies, "You're right too."
The reason that story survives is that it rings true time and time again. We know that in reality, legal arguments are rarely a simple matter of one person being entirely right and the other being entirely wrong.
As a mediator, my job isn't to play judge, nor to define or defend one right over another. My job is to find a way that each party can walk away feeling they were both right, and that the compromise was right too.
I used the "C" word. I know.
Now, I have to tell you, the word "compromise" has gotten a bad reputation among the trial bar. Often compromise is equated with "selling out" or "giving in." We say that a politician "compromised" his ethics. Or that security was "compromised" when a bomb explodes in a crowd.
That is because we know, as the Colombian dictator Battista once said, "The fellow who says he'll meet you halfway usually thinks he's standing on the dividing line."
The job of a skilled mediator is to identify the true dividing line. The mediator, by maintaining impartiality, can acknowledge the dividing line, and then erase it to make room for more options.
Finding that line is a more difficult a task than it seems. It's much like that famous line in the sand drawn by Saddam Hussein. Depending on which way the wind blows, the line can move, be obscured or completely blow away. And when battle lines are drawn, information becomes "classified", highly guarded, inaccessible. To avoid turning the dispute into the "mother of all wars" takes delicacy and skill. This hoarding of information that we tend to see in discovery disputes involving tort and employment claims is precisely what turns cases sour for parties.
Trial lawyers know quite well what the litigation road looks like. Experienced counsel can predict virtually the entire course of a case, types of motions and discovery disputes, costs, time. There is only one thing no counsel can predict with any certainty. That is the outcome.
But trial lawyers can stay in control of the outcome and shortcut the system at the same time. The mediation landscape allows trial lawyers to select the appropriate neutral, not one the court would appoint, and to define their own dates and meeting times. There is no more waiting for a courtroom to eventually open up and appeals to follow. Some clients might react bitterly if they were told they had to wait two years for the Ninth Circuit to rule on their appeal. Knowing they can get closure today is often a huge driving force for each side to settle.
Don't get me wrong, I'm sincerely grateful to read about the jury verdicts in the sheets. The shadow of the court and the verdicts you obtain are the raw material that allows me as a mediator to do my job better.
Perhaps this is beginning to sound more like a lecture at The Citadel than a discussion on Civil Justice. I understand....the courtroom is a battle ground. And war is hell. The problem is that many of the combatants may not know they have a choice, they may be stuck in a "one, two.. many" mind set.
Mediation is not a daisies-in-the-grass-holding-hands-and-singing-Blowin'-in-the-Wind type of peace. When you go to Mediation, plan on attending another battlefield. It is like the kind of hard won peace that leaders gain after intense positioning at a summit. By the time the parties have agreed to meet off the battle field, tempers are already flaring. The battle lines are already drawn. The parties have begun to dig in.
By strategically using the mediation process, the disputants can select options "three" or "four." They can choose not to enter the battle zone at all, to meet instead in neutral territory, and work toward a peaceful and fair solution. And litigators can create value for their clients by viewing themselves as conflict resolvers who happen to have a specialty in trial work.
Jeffrey Krivis is the author of two books: Improvisational Negotiation: A Mediator’s Stories of Conflict about Love, Money, Anger—and the Strategies that Resolved Them, and How To Make Money As A Mediator And Provide Value To Everyone (Wiley/Jossey Bass publisher). He has been a successful mediator and a pioneer in the field for eighteen years. Krivis is on the board of visitors of Pepperdine Law School and serves as an adjunct professor of law at the Straus Institute for Dispute Resolution. Contact him at his website, www.firstmediation.com.
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