What if they declared a war and nobody came? What if Muhammed Ali and Joe Frazier II took off the gloves and asked how they could accommodate the other with creating a mutually agreed upon decision? What if David said to Goliath, “Nice muscles,” and Goliath said, “Impressive stone throwing apparatus.” What if they agreed to help one another walk away from the brink with something that both agreed upon?
Hey, I’m being serious here! Are you ready to test the very paradigm of mediation? I am suggesting that we may have this mediation thing all wrong; the way we approach the mediation process, initiate the meeting, deal with each other during the negotiations, handle the problems, and attempt to reach a conclusion. (Big talk! What you got?) Okay, here it is!
The practice of law can be broken down into two major categories: adversarial and non-adversarial – just like litigation and transactional. The litigation attorney may spend an entire career continuously battling others when the business falls apart, when the assets need to be divided, when injuries need to be compensated, when accusations need to be defended. A transactional attorney may spend an entire career putting together contracts, joint ventures and corporations, overseeing the creative process from inception to reality.
Civil litigation, however, seems to be where the pressure cooker seems to be on full-time. Fast Track grabs the case at filing. Correspondence starts to fly immediately and too much of it is hostile. The parties attempt to dissect the pleadings and force each other into altered positions.
Discovery begins and you might as well give everyone a club as the entrenchment begins. The adversarial cloak and dagger is the dress of the day. Puffer fish are put to shame. Tarzan weeps at the tremendous chest pounding. With testosterone and estrogen levels reaching epic proportions, at just the moment when E=mc2 appears to be producing some unfathomable explosion in the case…along comes mediation. (Whoa! Turn down the volume, slow down the train! What do we have here? What do I do with this?) Unfortunately, for too many our answer is that mediation is just another opportunity to show the other side how wrong they are, how right we are, and how really, really ready we are to go to trial. Actually, let’s just stop altogether and make a fundamental inquiry: What is Mediation?
Mediation, unlike any other moment in the litigation, is an opportunity for the parties to mutually agree on a single settlement point. There’s no judge making a decision somewhere between the parties, no jury deciding the outcome after battle, no ‘someone else’ at all telling us how this plays out. This wonderful vehicle, I respectfully submit, requires a departure from the adversarial role, and commands us to address the question: "What can I do to ease the other side into a mutually agreeable compromise?" You need the other side to agree with you, to travel to the same destination, to agree on the identical terminus. Why, oh why, would you want to piss them off?
In a mediation, the parties are in control of their own destiny. A good mediator can, without doubt, make a huge difference, but more so when the adversarial hats stay firmly in place, when emotions still run high and when hardball tactics are the order of the day. How much better would the process be if the litigants truly appreciated that they need something from the other side; that they need to cooperate with the other side, that they need to facilitate the other side's epiphany; and that a certain common position is best for this case on this day? (That’s the mediator’s job: to drag me kicking and screaming into a resolution. Looks better for my ego that way!)
Indeed, we mediators make a good living at dragging the combatants to a common ground; reputations are made from the wrenching and the cajoling done by our top mediators. Mediators do it and the lawyers expect it. It is your mediation and we mediators will deploy whatever tools we have to make your mediation successful. But what if…
What if we all decided that mediation is a unique institution where litigants have a golden opportunity to resolve the case on their terms? What if we decided that the parties are partners in this process, codependent with all the other sides in the lawsuit? What if we all appreciated that this is not supposed to look like a trial or a law and motion dispute. This is supposed to be all about finding that number; that settlement point which all sides can agree upon today! What if we agreed that you don’t fight fire with fire—the fire department uses water for heaven’s sake.
What if, as a rule, we asked our adversary before the mediation, "What do you need from us to help you resolve the case?" What if we always exchanged mediation briefs? What if we counseled our clients, adjustors and all other critical personnel that we need to keep our minds open and our skins thick? Don’t take it personally! Take a break, not a shot at the other side.
What if we stressed that we need the other side’s cooperation to make this mediation work, so let’s task ourselves to do nothing that will distract from a cooperative mood? What if we agreed that our first movement on the case would be for the express purpose of demonstrating our desire to see this case resolved sometime today? What if we agreed that there is no hardball tactic that is effective as a proactive event? What if we took a fresh look at joint sessions and tried to find a way to appreciate the other side's position - not to agree with it - but to appreciate that they have a position in the lawsuit and that we have a willing ear to listen to it, absorb it, not react to it. What an excellent tool at gaining trust and respect!
Oh my, what if we agreed that gaining the trust and respect of the other side is a positive force behind finding that common point of resolution? What if we were determined not to react to the first slight, the first hardball tactic? What if we explored the outburst of an adversary with the mediator and came up with a plan to move through the storm and come out the other side further down the path of resolution without responding in kind?
I recall a great story from the Cuban Missile Crisis. Chairman Nikita Kruchev had sent a blustering communication to the White House. The two sides were on the brink of war. How to respond was an excruciatingly difficult question. Then Robert F. Kennedy came up with the response: Pretend the U.S. did not get it. Send a reply as if no “in your face” communiqué had occurred. Take out the emotion with a benign response and wait. So America did. And Russia decided not to repeat the overcharged communication again. Things stayed static rather than escalating into the abyss. What if we give that method a try the next time a shot is received across the bow? Hard to play it as if you did not know it was received, but simply do not respond in kind. Treat your response as if you had received some far less insulting communication.
The current paradigm of mediation is to remain “adversarial.” Make an opening demand in mediation higher than your last demand pre-mediation. If you have a joint session, use it to show that you are not one to blink and that you see little merit in your opponent’s position. Stop already!
Change the paradigm to “cooperative,” “cautiously cooperative” if you like. Recognize that you need each other in order to agree sometime today. Seek out ways to keep your opponent engaged. My advice? Offers of cooperation and information sharing is a good start. Exhibiting empathy and respect is a great start. Recognizing that the mediation vehicle is singularly unique amid the backdrop of an adversarial system thus requiring a unique approach…priceless.
Published in the Daily Journal
Friday, August 26, 2011