Friday, January 29, 2010

Fair is Fair

In a meeting with a group of mediators last night, one mediator told us that he believes it is important to suggest to the parties what he believes would be a "fair" settlement amount. Most of the rest of us were skeptical of this approach. Someone pointed out that the mediator often doesn't have enough information to determine what a fair settlement might be, as sometimes one or both of the parties is withholding information that could materially affect the outcome. Others suggested that it is not the mediator's job to try to arrive at an objectively "fair" result, only a result that is satisfactory to the parties.

I think it can also interfere with a mediator's effectiveness to attempt to impose a solution on the parties. I generally prefer not to provide my own opinions or evaluations, or make mediator's proposals, unless both parties press me to do so. A number of times in which I have represented parties in mediations, I have seen the process break down when the mediator attempts to force his own evaluation of the case onto a resistant party. I think it is better to encourage the parties to rely on their own counsel's evaluation of the case, of course also taking into consideration a differing evaluation by opposing counsel. A third opinion by the mediator may be just too much information. If the mediator's suggestion is merely an average of the parties' evaluations, it is unnecessary, as an average can be easily calculated. On the other hand, if the mediator's suggestion is closer to one side's offer than the other's, the mediator may appear to be favoring that side.

Of course we must deal with the larger philosophical question of what exactly constitutes fairness, anyway. Does fairness merely represent a prediction of how the court would likely treat the dispute? Or does fairness reach for a more abstract concept of a just result? Does fairness attempt to maximize the satisfaction that each side should receive from settlement of the case, both in terms of approximating each side's goals, and in terms of minimizing each side's pain? In determining fairness, how does one place a value on the psychic benefits of achieving peace, and of avoiding the costs and stresses of continued litigation? My view is that these questions may all be worth raising with the parties in a mediation, but they are probably too difficult for the mediator to answer for them. They are questions that the parties must answer for themselves.


Jan Frankel Schau said...

I am a strong proponent of fairness in process, but not in outcome. Parties often opt for settling at an amount or based on a deal that doesn't strike me as "fair", but that they are willing or eager to do for a myriad of reasons. It's only fair for me to let them go where they wish, in my view. Would any of us not view it as a compromise of our neutrality to cry "unfair" in those cases?

Alexandria Skinner said...

An attorney friend recently told me the reason she dislikes mediation is because too often clients come to her already bound by some mediated agreement that objectively would be much worse than they would have received from litigation. This perception of unfairness is a challenge. My view is that a mediated agreement that doesn't sit well on the client's stomach is the result of poor mediation skills. In my view, a mediator's primary concern needs to be about voluntariness and self determination. If an agreement is completely voluntary as well as informed, dissatisfaction is much less likely no matter what its terms. The value of self determination is advanced by balancing power in the room, by flushing out interests (so that parties themselves gain insight into the core of their conflict), by creative brainstorming to help the parties flesh out possible solutions. Although money may may represent key elements of a settlement, I believe it must be understood that money is a means to an end, that there are other interests that actually are represented by the money (e.g. $$ ability to purchase a car meets key interests of autonomy, mobility, pride). Non-monetary objectives can also be significant. To view a settlement purely as about money is limiting. Under my view, one party may agree to give more money than a court would have awarded, but that party may also get something else in return that a court could not award either (e.g. finality, emotional closure). Anyway, this risk of unfairness is the reason I also believe very strongly that the mediator should never push parties to settle before they are ready. I realize the mediator does need to push through difficulty -- that's not what I'm saying. But at the end of a mediation, the mediator needs to ask, "How will this feel at Christmas?" and help the parties do a reality check. Sometimes (often?) the parties will decide, rationally, to split the difference or to add in some amount just to avoid the cost of litigation. As long as this is something the party understands is his choice and is making a calculated decision, that's fine. But if the parties are not "happy" (in the sense of feeling they've made the best decision under the circumstances), then there's more work to be done in the mediation room. IMV, to twist arms at the end of a mediation, or to just "split the difference" as a matter of expedience is to invite buyer's remorse, dissatisfaction with the mediation, and gives mediation a bad name. So, I am utterly opposed to the mediator becoming "directive" or telling the party what she thinks is "fair". It's simply not my job. My job is to not have a dog in the fight, to be neutral to the point of not having an opinion about what is fair, and to enable the parties to make a voluntary agreement that they each truly "own".

Joe Markowitz said...

I appreciate both of these thoughtful comments. I agree with you, Alexandria, that it is a good idea to make sure that the parties feel comfortable with what they have agreed to at what might be the end of a long, tiring day. From the mediator's point of view, which is usually to encourage settlement, I might ask the parties how they might expect to feel in a day or a week or more, knowing that they have put this conflict behind them. I ask them that to let them envision life without the conflict that is troubling them. In most cases, people do prefer to end the conflict.

I think, however, that it is better for the party's attorney to be the one to ask their client if they are sure they are not going to regret the deal they are about to make. I agree that that is important also, so that parties do not have buyer's remorse, and so that they do not feel railroaded into a settlement. But I think that kind of reality check works better coming from the party's own counsel. Counsel's role in the process is to be the client's advocate, and counsel can sometimes best fulfill that role by slowing down the settlement process and making sure that the client is still going to feel good about the deal in the morning, or next Christmas.