The Big Secret, excerpt from Finding Common Ground, A Field Guide to Mediation

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We dance round in a ring and suppose
But the Secret sits in the middle
and knows.
— Robert Frost

It was a warm summer day in Seattle. The lawyers were polite. It was obvious there was only one
person at the table who believed there was any hope the matter could settle. Lawyers for the plaintiff class
were there out of courtesy to the mediator who had invited them to spend a day seeing what progress could
be made. Defense counsel was going through the motions for his client, who initiated this mediation.

The dispute had been the subject of three lawsuits lasting more than four years. There had never
been any negotiations. Each side was committed to winning . . . but it had been a long time before anyone
asked what “winning” meant.

In the next eight hours, something important happened. The mediator listened, asked questions,
caucused with each side time and again. She showed the parties they needed to know more about what the
actual damages might turn out to be, if the plaintiffs prevailed. They discovered this information could be
developed fairly readily. It was agreed to recess and meet again in two weeks. There was cautious
optimism, as the parties saw that they could at least agree on what was needed, who would get it and when
to reconvene.

By the end of the second day of mediation, the rough outlines of a settlement had been reached. The
details were polished off in a third day, six weeks after the initial session. Hundreds of workers affected by
this lawsuit got the benefits of the settlement and for everyone, the ordeal was over.

How long would this case have continued to be litigated without mediation? We can only say that
this four-year-old dispute resolved in mediation, as do most matters mediated. We know the high success
rate in mediation is independent of the dispute’s maturity. Impending wrongful termination disputes resolve
in mediation before the termination. Intra-family disputes resolve in mediation before the family relationship has died. Contract disputes between businesses resolve in mediation allowing business relationships to
be productively resumed.

The secret is that whatever your dispute, it’s very likely to settle. Ninety percent of disputes never
reach the courts. Nearly ninety-five percent of those that do, resolve without ever going to trial. This
suggests that Americans are passionately determined to resolve their own disputes — despite the biggest
and most costly lawsuit industry in the world.

QUESTIONS: – a self-test

  1. What is the purpose of litigation?
  2. How do parties to litigation break out of that process and convene a process which gives them more control?
  3. What can be done to gain the cooperation of parties reluctant to negotiate?



(Rules: we consider the questions more important than the answers. While the following are
labeled “answers,” they are not necessarily the right answers, let alone the only answers.)

  1. The purpose of litigation is to prepare for trial. It is properly used to prepare for negotiated resolution only
    when its objectives and scope have been tailored to that purpose.

  2. Talking with a mediator or mediation service provider is the first step, often, in breaking out of a litigation

  3. There are specific techniques for gaining the cooperation of reluctant parties. See Finding Common
    Ground, A Field Guide to Mediation
    , pp. 130 ff.

Barbara Ashley Phillips

Barbara Phillips has 19 years of widely varied mediation experience, specializing in complex, technical and sensitive matters. A graduate of Yale Law School, Phillips served as an Assistant United States Attorney and practiced primarily federal civil trial law in Oregon and California prior to becoming a mediator. In Phillips' mediations,… MORE >

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