The skills and underlying premises of transformative mediation are often contemplated in the context of mediation. But is there a place for using the skills of a transformative mediator as an advocate in a contentious litigation? Here is the story of Chris G., a recent Hofstra graduate who was a member of the mediation clinic where transformative mediation was the approach taught and used:
“As I embarked on my career as a lawyer this past year, I decided on the following values: I want to be transparent with my clients and to always serve my client’s best interest. I decided on this path not only for my own moral gratification, but also because I wanted to cultivate the reputation of a trustworthy lawyer that is focused on my client’s needs.
Soon after I started my first job as a lawyer, I was given a case which was, well, an uphill battle. Settlement seemed impossible. When I told the partners that I would try to settle the case, they were highly skeptical that this could be achieved. The case already had a signed judgment, the parties despised one another, and the plaintiff was not represented by separate counsel. However, if the case was not settled, the result would be obvious: the plaintiff would attempt to collect on the judgment from my client, an unwilling defendant, by engaging a Marshal. My client would most likely not cooperate and resist by any means necessary. In short, years of protracted litigation would follow, culminating with my firm being the only true winners. Settlement was the best option for all parties, but how could such a result be accomplished when the parties despised each other and evaluated the situation drastically differently?
My client’s position was not good: if he accepted the Judgment as it stood, then his assets would be seized, his clients would be informed, and he would eventually have to pay a substantial sum of money, perhaps with interest compounding. In addition, his counter-claims against the plaintiff were speculative at best, and legal fees would continue to pile-on should he choose to pursue them. I would have to explore with him whether or not he would be willing to settle the case and if so, for what amount.
I started by explaining to my client the (likely negative) outcome which would result if we could not settle the case. This approach did not seem to shift him towards settlement and in fact pushed him to further harden his position. As my client dug in, his anger was apparent so I decided to use the same summary tool I have used as a transformative mediator: I defined the sub-issues in dispute, my client’s position and the opposing party’s positions on the issues as I understood them. While no adversary was in the room, using this tool and capturing and reflecting my client’s emotional response seemed to calm him down. As he heard the different issues at play, and his highly risky position of playing “hard ball”, the client realized that if he wanted to rid himself of this mess, he would have to come up with a reasonable number. A classic empowerment shift, and also a recognition shift: he was able to consider the other side’s position calmly.
Now to the harder part: convincing my adversary to settle.
Without having any other training or understanding of conflict, I would probably have proceeded with the “negotiation dance”: Anchor my claim, lay out my arguments, stand firm, try to figure out where the plaintiff will ultimately settle, and come close to that number. Most, perhaps even all, litigators would have done this, and this might have worked. Plaintiff may have bought my arguments, gotten scared or simply frustrated, and accepted the offer I Knew I could make. However, I also knew that this approach carried great risk because it may further feed the animosity between the parties and end the negotiation before it even started.
When I first approached the plaintiff about settlement he made it clear that he would not compromise. Once I was able to talk to him face to face, the talks centered on the Plaintiff’s frustration over not being paid for the services he already rendered or under the Judgement. I identified his stance as one of weakness: he was not able to even consider my client’s perspective and was not able to rationally assess the costs and risks of continuing with litigation. But how could I help the plaintiff consider these issues?
As was the case with my own client, whenever I tried to get him to evaluate the risks of litigation, the Plaintiff’s position was only further cemented. So I once again tapped into the skills I gained as a transformative mediator. I came to the idea that paradoxically, helping my adversary become stronger in the transformative sense would be the best way to have him consider the situation from my client’s perspective and perhaps even settle the case. This is precisely what I did. After allowing the plaintiff to say what was on his mind, I simply reflected what I heard from him. The empowerment and recognition shifts were apparent: he gradually became calmer and less aggressive as he spoke.
I also summarized both parties’ positions as I would if I were mediating the case, which further helped the Plaintiff to better understand the risks that both sides faced. Hearing a summary from me, the Plaintiff seemed to realize that I not only understood my client’s positions, but also his. The Plaintiff was much more willing to listen to my client’s side of the story when the Plaintiff realized that I listened to and understood his. Gradually, cooler heads prevailed, which another way of saying that both my client and the Plaintiff moved from anger and confusion towards calmness and clarity – an empowerment shift. Not only was a deal reached, but it was ultimately one favorable to the client.
Many of my colleagues at the firm assumed I had attacked the settlement discussions by firmly holding my ground and bullying the Plaintiff into submission. But this deal was obtained through my ability to recognize that when people are in conflict, they want to move from a place of weakness to a place of strength. And it was a much more satisfying way for me to play my role as an advocate.”
This recent story reminds me of another one of my favorite ones from a former student, we’ll call him David, who worked as an attorney for the IRS. I don’t remember all of the details, but the essence of this story is as following:
As the case with Chris, David was handed a very difficult case that has been up to the Second Circuit and back down again multiple times. This case was viewed as hopeless by David’s bosses — one of those cases that you immediately hand over to the most recently hired lawyer. David asked to have a meeting with the defendant and his lawyer. He sat and listened to the defendant’s perspective, affirmed that he understood it by reflecting not only content but also emotion. He then explained why despite his understanding of the defendant’s concerns, why the IRS is holding firm to its own position. Within a few days, he got a call from the defendant’s lawyer telling him that his client decided to dismiss his latest appeal. The lawyer explained that this was the first time that the defendant felt like anyone in the IRS was listening to him and that ultimately, the fact that his client felt that he was listened to allowed him to let go and move on.
I particularly like this story because it serves as a reminder that even in one of the most seemingly non-relational environment – citizen v. IRS – a relational awareness can have significant impact.
Yishai Boyarin received his J.D. from UC Berkeley and his LL.M. from Hofstra Law School, where he also served as Clinical Professor and Director of the Mediation Clinic. He holds dual Israeli and American citizenship, and served in the Israeli Army, which continues to shape his thinking about conflict and conflict resolution. He now practices family law in the Bay Area.
Christopher Gioia is a 2014 graduate of the Maurice A. Deane School of Law at Hofstra University, where he now serves as the school’s faculty advisor for the Dispute Resolution Society. He also works at the New York City based law firm of Cuomo LLC, where he is an associate specializing in commercial litigation and insurance defense litigation matters.
posted by Dan Simon