Face Time Can Go a Long Way Toward Settling Legal Battles
FORUM COLUMN
Originally published in the June 10, 2009 edition of the LA Daily Journal as part of Loyola's weekly Civil Discourse series
By Mary Culbert
A few weeks ago, at the Harvard Program on Negotiation's Mediation Pedagogy Conference, 150 mediators, trainers and professors from around the world got together to question their assumptions about mediation training. One thing that struck me most about the conference was that no one questioned what I would describe as two basic tenets of the mediation process. First, those involved in the conflict - meaning the parties (and their attorneys) - should speak directly to each other to consider their differing perspectives as the means to create new perspectives about the conflict and ultimately to find a resolution that is acceptable to both sides. And second, advocating attorneys should be thinking about settlement options that serve not only their clients' needs, but also those of the other side because it's ludicrous to think that anyone would accept a solution - in a voluntary process - that meets none or few of their needs and interests.
Many attorneys understand mediation well and are able to take full advantage of the process. Still, others continue using behaviors that are contrary to those two basic tenets, which make it harder for us, as mediators, to do our jobs. We in Southern California seem to be at a very different place in the evolution of our use of mediation compared with many others around the world. Perhaps it's due to the vast number of legal disputes being resolved through mediation in Southern California. Even colleagues from Northern California have noted that "You folks do it differently down there." Last month at the ARMS Southern California Conference on Eldercare Mediation, when lead trainer Alice Rudnick of the New York Unified Court System's Office of Alternative Dispute Resolution suggested that we ask the attorneys to wait to speak and only allow the family members to speak, many of us went into non-compute mode. I said, "That just isn't done here, especially if one ever wants to work as a mediator again." One participant said, "It's like the Wild West out here." Another said, "The attorneys are running the show." Whether it's the Wild West or more like the rise and fall of the Roman Empire, it may be time to take a more thought out approach to our mediation negotiations.
It isn't unusual to see attorneys digging in and demanding settlements that would never be acceptable to the other side. Contrary to the basic tenet of direct discussion, many insist on no face-to-face discussion whatsoever and refuse to let their clients speak. Some mediations look like a series of glossy PowerPoint presentations where the clients are never heard from - some even sit against the back wall crying or cringing. Many attorneys arrive at mediation having given little or no consideration to a solution that would serve their clients' interests that might also be acceptable to the other side. Some haven't spent any time thinking about how to proceed without poisoning the fountain of their settlement - the other side.
Some of these behaviors make it more difficult for us to help you reach agreement. At the Harvard conference, John Forester, a professor of city and regional planning at Cornell University, remarked that "Mediators don't make agreements any more than midwives make babies." We're just your guide on how to birth that settlement. We make the process that allows you and your clients to consider each other's perspectives, to get a third party's (the mediator's) view on the case, and to create a negotiating relationship from which to build that agreement. A confluence of these factors, along with a little mediation magic (I'm not giving all the secrets away), paves the way for settlement. So here's the best I've got to try to convince you why you should talk to each other in the mediation process, to seriously consider prepping your client to do an opening statement in the joint session, and to get out of your mediator's way and let him or her do their magic.
Client catharsis, having their proverbial "day in court," goes a long way in the client control and client satisfaction departments. When we feel wronged we need to be heard and understood by the person we believed wronged us. As soon as a lawsuit is filed, that possibility is taken off the table. Give it back to your client. They need to tell it like it is. Prep them and don't let them give away the store.
Show off your client. Allowing your client to speak shows the other side who your client is and why they don't want your client on the stand. OK, if your client makes a lousy witness then you can't let him or her speak, but know that someone in the room is probably hallucinating that your client is a lousy witness if you insist that he or she not participate.
Assume they haven't "heard" you yet. When people are involved in battle, which a lawsuit often is, they're defending their positions and not listening to each other. So say it now and let your mediator do her magic. If the mediator inquires about something you know she already knows, don't worry, it's likely a technique for making sure the other side hears it or gets what they don't seem to be getting.
You may not have heard the other side yet. You are also involved in the battle, so maybe you didn't stop to listen to how a neutral judge might see the other side's version of the case. Give your mediator a chance to help you see both sides more objectively. It's likely you don't have your own vulnerabilities in perspective yet.
You may need a reality check on your perspective about your own case. If we say something enough, we begin to believe it ourselves. This may lead to tunnel vision about the weaknesses of your own case and a little reality check will go a long way. A good, ethical mediator should be able to do this without embarrassing you.
If the joint session is done right and both attorneys are prepared, you both get to size up the case, and the other side's main witness, from a different perspective. You'll want to see it through the mediator's eyes - so you'll wind up having a new perspective on it - provided you come with that open mindset. Now you get the opportunity to discuss all the possible perspectives with your neutral mediator.
Your client is likely very emotional and morally entrenched in the "it's just not right" syndrome, which can lead to client control problems. You've told him or her that you don't have two legs to stand on legally, but your client hasn't heard you and needs a reality check. Let the process - hearing the other side in the joint session - and the mediator help you with that.
A joint session is your opportunity to start creating the negotiation relationship. If you refuse to speak to the other side, you are still creating a relationship through that avoidance. There are so many creative ways to go about building a relationship with the other side that lead to more satisfying and creative solutions. Is there is any possibility for future dealings that would serve the needs of both clients? It's good to get yourself out of the way and allow your mediator to help you with that.
By allowing the drama to play out in the joint session, your mediator will be able to see if there are other, non-legal issues preventing the case from settling. If your mediator is good, she will have some tricks up her sleeve for resolving those issues as well.
So that's the best I've got to try to convince you to go another way in your next mediation. There are a lot of mediating magicians out there - but without an audience that's willing to play along, you won't get much of a show.
Mary B. Culbert is a mediator, an associate clinical professor and director of The Loyola Law School Center For Conflict Resolution.