Mediation War Stories - The Underbelly of Litigation

Introduction

Conflict resolution comes in all shapes and sizes ranging from international military confrontations to a couple discussing who goes outside to pick up the newspaper on a snowy day. It is found in human interactions and in nature. It runs the full gamut from barnyard animals to quantum mechanical particles. Nature embraces the inevitability of different opinions, values and interests, thereby guaranteeing the certainty of perpetual conflict. When these forces collide, as they certainly will, it inevitably produces some level of conflict. However, every conflict contains the seeds of both creation and destruction.

Conflict may arise by an intentional act or an unplanned event, and it involves the struggle between competing forces over such factors as resources, power, values, money or status. There also is a social function of human conflict, and it can be the safety value in the pressure cooker world. Conflict on an international level can involve tanks and drones, but it can also be in a benign form as is found in the Olympics. Anyone who labors under the false impression that the Olympics is a sporting event is naïve.

Disharmony and conflict are natural and inevitable parts of human social interaction. The basic factor is enabling the relevant parties to obtain closure and to move to a new and hopefully improved status. Conflict can be beneficial or destructive. Think of a butterfly fighting its way to escape from its cocoon.

Civilized societies view the presence of peaceful relations among its members as being a desirable goal. That is to say harmonious relations are perceived as being an asset to society. Conversely, the presence of a dispute is perceived as being an unacceptable circumstance that needs to be resolved.

There are some items in life that are not negotiable, but the clear majority of problems are subject to compromise. What aspects in one’s life are negotiable? Is it akin to a Faustian deal with the Devil to compromise one of those issues? What if the person on the other side is an especially nasty individual who you would be happy never to see again?

Life is full of choices. What is the so-called carrying value of one position versus another? Two intervening forces are inertia and the fear of the unknown. The metaphorical road forks, so does one select the street to the east or to the west? Is $1,000 today worth more to someone in graduate school than five times that amount a few years later?

Does a person take a vacation in February to go skiing in Vail or would it be more enjoyable to spend that same week in a cabana in Jamaica? Does a person get up during dinner to answer the phone? Should a person accept a job promotion if it entails moving half way across the country? Is it wrong to turn off the alarm on Sunday morning or should the person get up and go to church services?

How long does a person stay in a relationship when the other’s alcohol addiction is out of control? There is the sexual issue of remaining faithful to one’s partner. For someone on a diet, a slice of birthday cake is especially enticing. In that person’s mind, chocolate was invented by Satan.

People negotiate constantly, be it with a partner, a supervisor, a co-worker, a neighbor, a family member or with a waiter. A person negotiates with one’s own self. Do you accept a wedding invitation from a cousin that you do not particularly like? That entails the so-called “should” factor. How difficult is it to turn one’s back on the “should” factor? People regularly “should” on themselves.

How often “should” a person visit a sick relative? What if that person is terminally ill? What if that person is worth millions of dollars? What if that wealthy individual has made a habit of quasi-obliquely fondling your nubile fifteen year old daughter? Those questions are far beyond the scope of this book.

Conflict can involve one-shot interactions or on-going relationships. There is not much one can do when the driver of another car waves an index finger at you. It is a different situation when dealing with a brother who always is in desperate need of money. What if that same person is dying and needs you to donate a kidney?

It is easy to propound rhetorical questions of this ilk. Answering them can range anywhere from difficult to impossible. Overshadowing such problems is the factor of personality. Are the relevant people aggressive or passive? Are they risk-tolerant or risk-adverse? Did they play nicely in the sandbox when they were children or were they then (and perhaps still are) bullies? Deep down, what level of interest does each side have in resolving the conflict? Finally, is this an issue that can be voluntarily settled?

Negotiation is a subjective, real world form of art and requires a basic understanding of human dynamics. Crassly put, that entails the ability to crawl between the ears of the other person. A lot of people are lousy listeners, and as such they miss subtle clues. A skilled negotiator detects such items and exploits them to full advantage at the strategic point in time.

There is a misperception among the general public as to the role of an attorney. Most people incorrectly believe that litigation is the outcome each time someone visits a lawyer about a problem. That rarely happens. To take that topic to the next level, few people are aware of the fact that on a nationwide basis only 6% - 8% of lawsuits that are filed go to trial. Disputes settle for a wide range of reasons, one of which is voluntary resolution with the aid of a mediator.

Mediators encourage people to objectively consider the emotional, financial and all other relevant considerations in ascertaining the carrying value of a conflict. Advocates for mediation believe that it is the best thing that has happened to civilization since the invention of dual controls on electric blankets.

A mediator does not offer opinions but instead asks relevant and sometimes rhetorical questions. The participants have the exclusive right to resolve a conflict, so at its basic level all that a mediator can do is be sure that the people in conflict non-emotionally evaluate their respective positions, weigh all of the relevant variables and then hopefully make intelligent decisions.

Conflicts can be either open-ended or close-ended. In open-ended situations the individual deals with fungible items has the ability to walk away with no adverse consequences. For example, a person has options if looking to buy a Honda Civic or a certain brand of bicycle. Such situations are limited only by the elements of the negotiation itself.

A closed-ended situation occurs if the individual is negotiating to acquire an original Jackson Pollack painting, a divorce or the terms of the will of a deceased parent. To follow this concept a little further down the conceptual road, the issue is case-specific. The range of available options is limited. One cannot trade in a child, though the idea has occurred to some parents at one time or another.

The comments and suggestions found in the following pages can be employed in almost every phase of a person’s life. Negotiation has been with people almost from the very beginning. Reference is made to the Bible in which there is a negotiation between God and man as to how many good people are to be found in Sodom and Gomorrah if those cities are to avoid destruction.

Mediation is a suitable method to obtain closure in most disputes. At the outset it should be noted that the term mediation has significantly different definitions from one jurisdiction to another. Generally the term involves a third party neutral with no settlement authority. However, in other areas the role of a mediator resembles that of an arbitrator, who issues an advisory opinion if the disputants cannot voluntarily resolve the issue on their own. There is one state in which courts enter a judgment based on the mediator’s evaluation of the dispute, absent the parties being able to persuade the judge to the contrary.

The Uniform Mediation Act (“UMA”) was approved by the American Bar Association in 2002. The underlying reason for this model law was to replace hundreds of complex and often contradictory statutes and regulations. Under the definition section of the UMA, the term mediation is defined as being a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute. That is a rather generic sounding mouthful, isn’t it?

For purposes of this book, the role of the mediator will be that of someone who encourages but cannot dictate the ultimate outcome of the process. The mediator helps disputants delineate positions versus issues, and encourages them to evaluate the options on the peace/war decision-tree spectrum. The mediator strives to keep the disputants focused on the subject, and not let them wander into tangential issues that divert attention and energy from the real issue. A mediator always has to be sensitive to what is a real issue and what is nothing more than elephant dung that is deployed in an effort to stink up the process.

In terms of litigation, the actual disputants are relegated to a secondary role at trial. The lawyers in a courtroom are the focus and all power shifts to the judge and jury. The plaintiff and the defendant become basically spectators during the psychological cut-and thrust of courtroom.

Contrast that to the democratizing element in mediation. The laypeople make the ultimate decision at mediation whether to proceed or to resolve their issues. Isn’t that how it should be? In the final analysis, it is their lives and finances...