From Michael Zeytoonian’s Dispute Settlement Counsel Blog
It’s great that there are now two new shows which focus on mediation as an alternative to the court process. One is Fairly Legal (Thursday at 10 pm EST on USA Network); the other is Harry’s Law (Mondays at 10 pm EST on NBC).
Fairly Legal’s premise is the use of mediation to resolve disputes rather than going to court and fighting through a litigation process. The lead character, Kate Reed, is a lawyer who walked away from the litigation side of the profession to become a mediator.
Episodes I’ve watched have portrayed employment, intellectual property, divorce and criminal cases resolved by the creative intervention of the mediator. At the end of the February 24 episode, Kate gave a presentation to a room full of lawyers on the advantages of mediation over court-based litigation, making the case we have been making – it saves time, saves money, saves relationships, can be more creative in coming up with good solutions and is confidential.
Harry’s Law is a law show with a twist. The lead lawyer, played by Kathy Bates, runs her law practice out of a shoe store. This resonates with me because I can envision combining a dispute resolution practice with a breakfast and lunch restaurant – my ultimate goal.
The February 21 episode was on point for two reasons: It presented two cases, one showing in a compelling way how mediation can be used effectively to resolve a neighborhood gang dispute and the other showing in an equally compelling way how a court-determined verdict fell so short of solving the problem in an employment dispute.
What was compelling about the mediation of the gang dispute was that the mediator, played by a young protégé of Bates, intuitively understood two key things. He knew he had to connect with the gang members by understanding their culture and issues and embracing them, and he had to focus on their interests to solve the problem. He did it brilliantly, precisely identifying the interest of each disputant and urging them to a solution in which each side had to give up something, in return got their interests met, and the wrongdoing was atoned for by the perpetrator.
Juxtaposed with the successfully mediated dispute was a wrongful termination case that was decided by a jury. The jury understood the issues and interests well enough. But its verdict didn’t fully address them, likely because the jury and the court system did not have the power or the mechanism to address one key interest of the terminated employee. Three issues were presented – fairness (i.e. was it fair to let a loyal and excellent employee of over 30 years go so that younger employees with families who would be more financially harmed by the layoff stay on), loss of wages, and taking away an elder worker’s livelihood.
The elderly employee’s biggest issue or interest was not so much that he was losing his pay because it was undisputed that he was well enough off financially to withstand the loss of income. While his termination was portrayed as unfair age discrimination, that wasn’t the employee’s main concern. He laid his interest on a silver platter to the jury in his testimony: “This job was and is my life. It’s all I’ve got. What am I supposed to do now?” A mediator or collaborative lawyer would have heard that loud and clear and jumped all over solving that problem. The jury either missed it or had no way to respond to it.
The jury determined the fairness issue finding the employee was terminated wrongfully. But then they awarded him damages of $75.00! In doing that, they gave the employer something he needed – the ability to have money to pay those employees he kept. So they satisfied the fairness issue in a way that the employer could still satisfy his interests (although unspoken in the show was the reality that he probably had just spent thousands on attorney’s fees to defend the lawsuit).
But their verdict failed to answer the employee’s most compelling question and interest: What was he supposed to do now? A collaborative lawyer or a mediator would have gotten right to work with the employer to figure out a way to keep the employee on board and working without necessarily paying him much, if anything. This would give the employee what we wanted and needed most – a continuing purpose and activity for his life, while not forcing the employer to have to let someone else go that needed the money more.
This is the classic difference between the win-lose (or lose-lose) of litigation and the win-win of mediation or a collaborative negotiated approach to problem solving.