A wimp, by definition, is a cowardly or ineffectual person.1 Suggesting mediation is not cowardly, although it may not always be wise.
Like other expressions in negotiation, suggesting mediation communicates something more than the proposal itself. To some it may signal weakness. But to others, it can be like opening a door, inviting dialogue, expressing a value oriented toward problem solving.
Even the most aggressive lawyers know there is an inherent risk in ignoring settlement opportunities because, when the case goes to trial, the outcome is left in the hands of some third party decision maker(s). This constitutes a loss of control of outcome, something retained in mediation. Mediation keeps lawyers and clients participating in crafting an outcome suitable to the interests that caused them to engage in the conflict in the first place. And that is almost always a good idea.
Further, mediation has become an extraordinarily common experience for most of us, and it is something encouraged or required by courts, so recommending it is rarely surprising. In fact, most clients know about it, too, and when properly educated about its function, often express gratitude for having been guided to its use.
In this context, mediation also has been an element enhancing the increasingly emergent lawyer role as conflict problem solvers, something Chief Justice Warren Burger urged many years ago by asking us to be “healers of conflict,” not warriors fighting metaphorical battles where the goal is to win at any cost. Advocating mediation as part of a problem-solving approach is “medicinal” in this healing aspect of our work.
The Advantages of Being a Conflict Problem Solver
Most of our clients appreciate our use of effective alternatives to the tedious, expensive, stressful, disruptive and unpredictable litigation process. Corporate clients are beginning to expect use of such alternatives and all clients, with few exceptions, are letting us know they prefer resolution of their conflicts, not unending warfare.
Clients may not say it, but I think almost all of them are looking to us for conflict guidance, and conflict guidance requires knowing about more than just the law and its processes. It takes knowing human nature as well and helping clients deal with human nature — theirs, ours and the others involved in the conflict, judges not excepted!
At the same time, if we can provide our clients an opportunity to be really “heard” — in our own client relationships and in the context of dispute resolution procedures — we are doing a substantial service and a valuable kind of “justice” is being served. Justice encompasses notions of “fair play and substantial justice,” including utilizing an effective system in which the parties can be heard and their conflict resolved. Mediation is such a system — and one often (perhaps almost always) far more effective in the “hearing” and “resolution” parts than litigation.
Yet, as lawyers, we can fall into the trap of, well, thinking like lawyers. We have been trained to “win,” to prepare and present a case to a third-party decision maker, not to work toward a middle-ground solution. Having been trained to use a legal hammer, everything tends to look like a legal nail. Yet, with clients increasingly looking to us to be conflict problem solvers, seeing only legal nails, in the long run, is not going to serve us, or them, very well.2
Mediation as a Problem-Solving Tool
Mediation comes in different styles and forms. The one most familiar to litigators is often called “settlement style” or “evaluative form” mediation. Shuttle diplomacy between opposing parties and counsel in a caucused session is often the general format. Risk assessment, filtered argument (with the mediator tempering and communicating the “I’m right, you’re wrong” arguments being advanced) and helping with win-lose (distributive) bargaining, is the usual process. The “bottom line” is usually measured in dollars and cents.
Facilitative mediation is another form that has been especially helpful in domestic relations cases and other situations (like some employment cases) where the relational and emotional aspects of the conflict problem are more obvious and near the surface. It is, so far, much less frequently used in most other civil lawsuits, although I think it offers significant potential for the preservation of commercial relationships caught in a conflict snag. And it could be more prominent in all forms of litigation, if we, as lawyers, focused our attention and thought more carefully about how settlement discussions could be freed up, trust built and argument de-emphasized a step at a time with a skilled mediator.
In facilitative mediation, a communication and negotiation process is aided by the mediator. In essence, when it works, the mediator helps the parties find an agreement through full expression of the issues and interests that are driving the litigation. The mediator then helps the parties create solutions and craft agreements that meet their mutual interests, based not just on who might win or lose in court, but on creative conflict solutions often found “outside the box” of restricted solutions available when money is the bottom line.
This process does work in all forms of litigation if the parties understand the process and enter into it carefully, judging the skill of the mediator and the parties’ unfolding demonstrations of good faith as trust is carefully built and interests — rather than positions — are explored. This form of mediation can be extremely beneficial, actually work to improve long-term relationships and transform prior misconceptions held by parties and counsel about the good faith and intention of the others.3
The Real Bottom Line
Our common law and way of resolving disputes in court has evolved over centuries. There is no reason why its evolution should stagnate or why we, as lawyers, should stay stuck in old assumptions about the way things ought to be. In short, we should be something more than mere warriors seeking to do verbal battle, looking to win an argument and make a case, all at the cost of client resources often expended on countless smaller disputes within a larger case before it even gets to trial.
While it is true we must always be wise in our judgments and to some extent on guard in relationship to the adversarial process we are engaged in, our job is expanding to embrace a much needed problem solving, conflict healing element, too. When we help our clients understand, assess and work toward resolution of the emotional, relational, transactional and other non-legal aspects of their cases, we enhance our role as professional service providers and contributing factors to evolving concepts of law and its role in society.
Encouraging facilitated negotiation is part and parcel of responding to our problem-solving role. In this context, it is not wimpy, cowardly or ineffectual to be the one to suggest mediation.
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John Shaffer has successfully litigated and tried cases for many years. He is a candidate for an LL.M. in Dispute Resolution (Straus Institute, Pepperdine University Law School.) He now mediates and arbitrates civil law suits and counsels law firms.
1 Merriam-Webster’s Collegiate Dictionary, 11th Edition, 2006.
2 It might even now be argued that it is an error or omission not to work at being such a multi-dimensional problem solver. How can a lawyer know what is best for her client unless she considers all the factors required to construct an appropriate legal response to a multi-faceted problem? Doesn’t that require understanding what the client’s true interests are? And doesn’t knowing that require the kind of personal, transactional, emotional, relational and other assessment being suggested here?
3 Another form of mediation now being advanced by some is called “transformative mediation.” As the word “transformative” suggests, this is a process in which change at very fundamental, root levels is sought. These changes include inner transformation of the conflict where the persons involved see their own roles clearly and change aspects of their own perceptions and nature, according to some advocates of this type of mediation. At the very least, this form is seen as transforming the relationship between the parties, and much more emphasis is placed on letting the clients work it out for themselves, with an occasional nudge by the mediator here and there.
