Saturday, May 16, 2009

The President Sounds like a Mediator

As he has done since the beginning of his campaign, Barack Obama likes to talk about a new kind of politics in which people sit at the same table and talk to one another instead of shaking their fists at one another. Here he is this week bragging about bringing together different players in both the energy debate and the health care debate. If these initiatives bear fruit, do they herald a new dominant mode of problem-solving? Does President Obama reject the whole idea of dialectics that has been so influential in political philosophy, in favor of more positively-reinforcing ways of achieving change? Can he really get the political system to work in this new way?

The rise of mediation as a means of dispute resolution can be seen as a similar movement questioning the prevailing philosophy that truth and justice can only be obtained through an adversarial process. Instead of expecting to achieve a positive result through the clash of opposing ideas or interests, mediators attempt to maximize the returns for each side by asking the parties to recognize the weight of the other side's positions. Instead of attempting to fight and defeat the opposing interests, each side is encouraged to accommodate those interests to the extent they can do so consistently with their own goals.

In mediation, the goal is a negotiated agreement with both sides feeling that they achieved a positive result, or at least with neither side feeling like the loser. If the President succeeds in transforming our politics in a similar manner, he may help create an even more receptive climate for and understanding of the mediation process.

P.S. (May 19, 2009):
After I posted this, it occurred to me that other mediators must have recognized the mediator-like qualities in Barack Obama even during the campaign, and sure enough I found some articles hailing the potential of a new mediator-in-chief. Here's one by James Melamed, and another by Diane Levin. Of course, I also want to give myself some credit for my own early recognition of what was new about Obama's candidacy, as shown for example in a post from November 2007, comparing the styles of the presidential candidates to the prevailing modes of dispute resolution.

Thursday, May 14, 2009

More on Joint Sessions vs. Caucus

There is a post on Victoria Pynchon's blog decrying the trend toward immediate separate caucus sessions, and the death of the joint session. This was a hot topic at the annual CLE session for mediators on the Central District settlement officer panel a couple of weeks ago. Victoria makes the point that joint sessions can help resolve a dispute not because they give everyone a chance to practice their arguments on one another and not because they allow people publicly to vent their feeling about the issues, but rather because they give the parties an opportunity, perhaps through the exchange of small talk, to see each other as human beings, and sometimes even to put aside talk of the money dispute that the parties are supposed to be there to resolve. It seems, paradoxically, that only when people can become less fixated on the problem that they are there to solve, that they can put that problem in perspective and allow themselves to resolve it.

I recently attempted in three hours to mediate a car accident case. Both sides were extremely anxious to retreat to their separate rooms, and cut to the chase of negotiation over numbers. Although I attempted to cajole them into remaining in the same room for a while longer, they both clammed up and insisted that they were ready for separate sessions. Once they did that, however, it became clear that neither side had a serious desire to negotiate a resolution of the dispute. Because the parties made no effort to establish any connection with one another outside of their mutual consumption with the same lawsuit, they also had no desire to reach an accommodation. Instead, one side walked out of the negotiation as soon as it became clear that the sides were far apart in their views of the value of the case. Could I have induced the parties to stay together longer, and find something to talk about? Perhaps not, but had we been able to do that, we might have reached a different result. Much as we all dislike remaining in a room together with people with whom we feel nothing in common, and with whom we have strong disagreements, it may be the very act of attempting to find common interests outside of the dispute that can enable the parties to resolve it.

Friday, May 8, 2009

Nothing "Alternative" about Mediation

Most lawsuits end by settlement. Mediation is increasingly being relied upon as the court's preferred mode for reaching a settlement. Therefore, instead of being thought of as an adjunct to the "normal" litigation process, mediation needs to be better integrated into the standard procedure for processing lawsuits. Let's start with the courthouse itself. Since most cases are never going to be resolved by trial or any other sort of courtroom procedure, why do we even call it a courthouse? Why not call it, say, a dispute resolution center?

Why start the process by filing a complaint? Would it not make more sense to initiate a dispute resolution proceeding by serving one's adversary with a paper called something like a "notice of dispute," rather than a complaint? Most people's natural response to a complaint is outrage or defensiveness. The complaint provokes an adversary to fight. But a notice advising an adversary that the parties have a conflict that they have not been able to resolve, merely reminds the adversary that both parties have a common problem, and that they need assistance in solving it. So instead of filing an answer, which I once heard a judge call the most useless piece of paper filed in a case, the defendant would file a response indicating that he either agrees that the parties have a dispute, or he agrees with some or all of the claim that the plaintiff is making. Either way, the parties are already making progress in acknowledging their common problem, and beginning to deal with it.

Discovery should also be handled by a mediated process. The rules already encourage the parties to resolve discovery issues by a negotiated agreement, in federal court by requiring an initial meeting of counsel to address discovery and in both state and federal court by requiring the parties to meet and confer before filing any discovery motions. Greater use of mediation at this stage of the proceedings could reduce the need for discovery motions, and get the parties accustomed to resolving issues by negotiation and agreement, rather than by accusation and counter-accusation.

Even as we currently practice, the term "alternative dispute resolution" is outmoded and misleading. It merely stigmatizes a process that is in fact central to the way actual court cases get resolved. But because we consider mediation to be an "alternative" process, it takes place in the hallways, or in an unused courtroom, or a mediator's private office, as if mediation were an unwelcome stepchild that does not belong in court. Instead, mediation should serve as the front office of the dispute resolution system, with the traditional courtroom reserved only for the most intractable of cases, where a public battle over the issues is necessary and appropriate.

(A variation of this post appears on the Southern California Mediation Association website, as well as on my law office blog.)

Wednesday, May 6, 2009

When to Caucus

There seems to be a raging debate in the mediation community about the usefulness of joint mediation sessions vs. separate caucus sessions. Many mediators keep the parties and their attorneys in separate rooms almost from the outset. They do this to minimize animosity, and to avoid driving the parties further apart with hours of venting, accusations and counter-accusations. They do it because the parties and attorneys are often impatient to cut to the chase of negotiations, and feel no need to exchange information they already know too well. Other mediators believe there is a value in attempting to mend a broken relationship, or that the parties may need the cathartic experience of confronting each other and listening to each other before they can reach a settlement, and therefore attempt to preserve a role for the joint session.

I think there are also some efficiency arguments in favor of keeping the parties in joint session until they actually reach the stage of trading numbers back and forth. I like to find out what areas of agreement exist between the parties, which can more easily be done when everyone is in the same room. I like to have the parties listen to the other sides' attorneys' assessments of what might happen at trial. And I like to save myself the trouble and save the parties the time of having me listen to one side's story and have to repeat it to the other side in a different room. To the extent that everybody needs to understand what each side is contending, it saves a lot of time, and probably some losses in translation, to do that while everyone is in the same room, rather than by having the mediator acting as the messenger of such information.

On the other hand, I appreciate the dangers of inflaming people's passions in an unproductive way, and that it can sometimes be a waste of time to re-hash the facts of a case and the parties' respective contentions when the mediator is not there to decide the case or evaluate those contentions. Parties also need to understand how to listen to each other, and how to communicate in a persuasive way, for joint sessions to be helpful. So the answer to the question of how soon to break into caucus is, of course, that it all depends on the situation.