I had the chance yesterday to lead two groups of first year law students at USC in some mock mediation sessions. This is truly my idea of fun! I was impressed by how eager these students were to learn how mediation is done in the real world. It was also interesting to see how quickly untrained law students adopted many of the attitudes and tactics of experienced attorneys and parties in settlement negotiations. When it comes to negotiating, we all have a lot of experience from a lifetime of doing it, so in a way we are all experts. On the other hand, we are also mostly amateurs in terms of the theory and science of negotiation, and could all probably use more training. So it’s good to see that law schools are finally teaching these techniques. I can’t remember spending even a minute of formal training in negotiation when I went to law school, yet I soon found that it was a major part of practicing law. Ironically, before mediation became so prevalent, it was probably even more important than it is now to train lawyers in negotiation, since we usually had to settle cases ourselves. Now lawyers can rely on trained mediators to facilitate negotiations. And most mediators consider it part of their job to help bad negotiators become better negotiators.
I was also struck by some of the differences between how students approach settlement negotiations as compared to the dynamics of real world practice. In both of the mock mediations I did yesterday, the students playing the roles of plaintiffs’ attorneys were much more reluctant to come down from their initial demands than plaintiffs’ attorneys generally are in the real world, while the defendants’ attorneys were fairly flexible. Maybe that reflects a natural zealousness and sympathy of the law students who represented the class of injured plaintiffs, while the pretend defendants found it relatively painless to offer fake money and didn’t have to worry about the effect of their largesse on the business’s bottom line. Another thing that students didn’t always recognize is that settlement posturing is often highly client-driven. The pretend lawyers I observed yesterday were highly confident of their positions, while their pretend clients were generally inclined to follow the lawyers’ recommendations. In the real world, it is quite frequently the other way around. While I do see lawyers who are more aggressive than the clients they represent, more often it is the parties themselves who have unrealistic expectations of what they can achieve in litigation. Clients who are new to the legal process may have no idea of the likely results of litigation, but they have a strong sense of what they believe they are entitled to, whereas experienced attorneys usually have a pretty good idea of the weaknesses of their own case. Lawyers often rely on the mediator to help persuade their own client that a settlement might represent a better outcome for the client than taking on the costs and risks of continued litigation and trial.
The thoughts of two famous Pre-Socratic philosophers may offer insight into the philosophical foundation of mediation: “You cannot step twice into the same river,” attributed to Heraclitus, and “Of all...By Luis Miguel Diaz