By Eric Gillett
As a young lawyer, mediation did not come naturally. I remember in law school that the one course offered on negotiations was taught by a lawyer with a background in labor law. Her focus was on how things proceeded with labor negotiations. At that time, I had no context for that information and when tasked with mock negotiation problems, I felt like I was being asked to speak a foreign language.
Years later and as my tort litigation practice grew, I could look back and see how the problems I faced in that law school course were quite likely the result of not accepting the fact that negotiations around a tort dispute are not necessarily the same as solving a contractual dispute between an employee and employer or a union and a company. They are much more akin to resolving a dispute between two kids on a playground.
In that context, my life lessons were much more driven by a story like the following1:
On a warm spring day, the daycare center buzzed with laughter and the shouts of children playing outside. Among them were Jordan, a girl with braided hair and a penchant for storytelling, and Andrew, a boy with a mischievous grin and a knack for building intricate sandcastles.
Their playful day took a turn when Andrew stepped backward and accidentally tripped over Jordan’s favorite toy doll, Shannon. Shannon, with her soft blonde hair and delicate features, had been Jordan’s faithful companion for as long as she could remember. But now, Shannon lay broken, her smiling face cracked in two from the weight of Andrew’s shoe.
Jordan’s eyes welled up with tears as she cradled Shannon in her hands. “You broke Shannon!” she exclaimed, her voice trembling with a mix of sadness and anger.
Andrew looked genuinely sorry; his shoulders slumped. “I’m sorry, Jordan. Oops.”
But Jordan was inconsolable. “Shannon was my favorite doll. Now she’s ruined!”
Andrew, now feeling a little defensive, found it necessary to point out that Jordan had placed Shannon right next to his sandcastle and behind him so he couldn’t see her doll before he stepped on her. This just made Jordan angrier.
Their argument attracted the attention of the other children, who paused their games to see what was happening. Among the children was Ms. Judy, one of the daycare counselors, known for her calm demeanor and wise advice. She approached the pair with a concerned expression.
“What seems to be the problem, kids?” Ms. Judy asked gently, kneeling down beside Jordan.
Andrew hesitated, unsure of what to say. Jordan, still holding Shannon close to her chest, managed to explain through her tears, “Andrew broke my doll. Shannon is ruined!”
Ms. Judy nodded sympathetically. “Accidents happen. But it’s important to take responsibility and find a way to make things right.”
Andrew nodded but said, “she put her doll where I couldn’t see it and so its Jordan’s fault her doll is broken. And I said I was sorry, but she should say sorry too.” He said, pointing at Jordan.
Jordan sniffled, wiping her tears away. “But Shannon was special to me.”
Ms. Judy pondered for a moment before speaking again. “Yes, accidents happen, and it often turns out that both people may have played a part. Jordan, you must have seen Andrew playing right next to you. Did you tell him to be careful because Shannon was right behind him?” Jordan shook her head, no.
To Andrew she said, “And you must have noticed Jordan playing with her doll right next to you.” He nodded slowly, yes.
“Well kids, is there something you can do to make things better?”
Andrew thought for a moment, then brightened up with an idea. “What if I help Jordan fix Shannon? Maybe we can find some glue and try to put her back together.”
Jordan looked uncertain, but then nodded slowly. “Okay, but will she look the same?”
Ms. Judy smiled kindly. “Maybe not exactly the same, but it will show that Andrew cares about making things right.”
Both children relaxed a little. Andrew and Jordan set off to find some glue from the daycare art room. Together, they carefully applied the glue to Shannon’s cracked face and held her together until it dried. The other children watched curiously, some offering words of encouragement.
After what seemed like an eternity, the glue finally set, and Shannon was whole again, albeit with a faint line where the crack had been. Jordan examined her doll with a mix of relief and gratitude.
“Thank you, Andrew,” she said softly. “I thought Shannon was gone forever.”
Andrew grinned. “I’m glad we could fix her.”
Ms. Judy watched from nearby, proud of how the children had resolved their conflict. “See, Jordan? Sometimes accidents lead to new solutions.”
Jordan nodded, feeling a newfound appreciation for Andrew’s effort to make amends. “Yeah, and now Shannon has a new story to tell.”
With Shannon safely tucked under her arm, Jordan and Andrew returned to their games, their friendship stronger than ever. And from that day on, Shannon’s slight imperfection was a reminder to both children of their ability to overcome challenges together and find resolution even after things went wrong.
Thank God for people like Ms. Judy! And that is, in essence, the role of a mediator in today’s litigation world. Whether the dispute is around a breach of contract where damages are meant to give you the benefit you bargained for, or a tort, where damages are meant to make you whole, the mediated result shows each side how to work together to find a solution.
During a recent mediation, I found myself trying to help each side understand that putting the doll back together was all they could do to resolve their dispute. Plaintiff, while initially unwilling to see any compromise, eventually became willing to see that he had played a part in the accident that led to his injuries. Defense counsel and his carrier representative initially considered Plaintiff’s fault to be the sole cause of the accident. With a couple private meetings to discuss how a judge might rule on their evidence, they slowly came around to recognize that their chances of proving Plaintiff was entirely at fault were no better than fifty percent and likely lower.
As a result, both sides came to believe that a mediated solution was their best decision that day. They found a way to put their proverbial doll back together. It wasn’t perfect. But they found a way to overcome their challenges and now had a new story to tell.
Eric Gillett is a founding member and managing partner at Preg, O’Donnell & Gillett. Follow him on LinkedIn at https://www.linkedin.com/in/eric-gillett. He is licensed in Washington, Oregon, and Alaska. He has tried dozens of cases to verdict and mediated hundreds more. A navigator of resolutions, he is a commercial mediator and can be contacted through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. You can also reach him through his website at www.gillettmediation.com and his email at egillett@pregodonnell.com or eric@gillettmediation.com Mediations are available both in person and via Zoom.
1 Apologies to my children for using their names without permission. Be assured, they never had any disputes that needed a mediator.
