Derek Bok (b. 1930)
President, Harvard University
Admittedly, the quote is a bit of a stretch, but somehow it seemed fitting for the topic of this opinion-piece. You be the judge.
Florida Mediation Group and other mediation groups and many sole-practicing mediators encourage parties to a mediation to furnish brief summaries - confidential or not, at the discretion of the party - to the mediator prior to mediation. Neither Florida Rules nor Statutes require it, and, as a consequence, mediators rarely receive summaries, and, when they do, too often they receive it from one side only.
And therein, as Willy Shakespeare would say, lies the rub.
When a mediator receives only one summary, he or she is given only that advocate’s side of the dispute. Come on, folks. Lawyers are skilled in the art of advocacy, or should be, and that naturally entails presenting the case in a light most favorable to the client. Not necessarily untrue, just, well, slanted.
Now, mediators are human (regardless of what you may think), and I would be toying with the truth to deny being influenced, at least a little, by reading only one side’s version of the facts. Why risk even the slightest mindset on the mediator’s part before the proceeding begins? Has any mediator or attorney, having read one side’s account of a dispute, not been inclined or tempted – I choose my words carefully – to accept that version, only to be swung back to the other side or at least to neutral ground upon reading the other side’s version? Be honest. We claim to be open-minded, but, again, we are human and thus encumbered with all the natural human instincts.
Perhaps the federal courts, at least in the Southern District of Florida, demonstrated more prescience than has the Florida Legislature. That Court, by rule, mandates that summaries be submitted prior to mediation. Of course, the rule seems in this mediator’s experience to be recognized more in its breach than in its compliance, which brings up another dilemma, possibly a legal risk. If one of the parties provides a summary, thus complying with the rule, and the other does not, query: does the former have a punitive lever in the event the proceeding is not successful for him or her? This may be the only occasion I find to offer legal advice, in caucus, to the violating attorney alone, to be aware of the federal requirement and the possible consequences of its violation. I have never had an attorney try to take advantage of such an oversight, but the cautionary advice, I would hope, might avoid such shenanigans in a future case.
From a purely practical standpoint, in most cases, a summary takes only minutes to read and can accelerate the mediator’s understanding of the dispute, thus saving billed time for the proceeding. Unless the dispute is especially complex, in which case a summary is particularly valuable and essential, it does not have to a treatise. It can be copied to opposing counsel or (except under the federal rule, which requires such sharing of information) submitted for the confidential use of the mediator alone.
Does it take a segment of the attorney’s time to draft and submit a summary? Of course, but, as the old saying goes, you can pay me now or pay me later – and, in this case, the latter might well be more expensive. I am not the only mediator who has had occasion to flounder in ignorance through half a proceeding before comprehending the true nature of a dispute. What a waste. It is also human nature for attorneys who have been plodding through discovery for weeks or months and who therefore have a thorough understanding of the case to assume that a mediator will grasp the nuances immediately upon opening statements by counsel. How presumptuous!
Give us and yourselves a break, people, and furnish those summaries prior to the scheduled day of mediation.