Monday, April 5, 2010

The Power of Agreement

One of the more interesting courses I took in law school was International Law, which is not a course that everyone takes, because it does not appear to offer much practical value for most lawyers' careers.  I didn't see much practical value in it either when I signed up, but found that it got me thinking about the law in a much different way from other law school courses.   What you learn when you study international law is that the system of international law is for the most part not structured as a body of statutes enacted by legislatures, or precedents handed down by judges.  International law is mostly not enforced by police, or by fines, or by prison.  Because it doesn't primarily rely on these attributes, many people--including many lawyers--do not take international law seriously.  That is because people do not generally recognize the power of agreement as a means of creating enforceable law.  Agreements between nations rely on principles of trust and reciprocity, more than they rely on sanctions or the threat of warfare.  Their enforceability mostly derives from the mutual benefits of living up to treaty obligations, as well as each party's fear of the loss of those benefits if that party were to fail to live up to those obligations.  For example, nations generally pay their debts because they want credit in the future, not necessarily because they are afraid of being invaded if they do not. 

In some ways, mediation is to litigation as international law is to traditional sanctions-based law.  It is not just that mediation is a process that aims to result in an agreement.  It is a process that operates at all stages by agreement, from the choice of an ADR process, to the conduct of the mediation itself, to the negotiation of a settlement.  If parties approach mediation in the same way they approach litigation, as a conflict in which one side will prevail over the other, they are less likely to be successful than if they try to establish some degree of trust and reciprocity with one another.  (That is not to say that parties should not try to get the best deal they can, or be prepared to walk away from the table if they cannot achieve a fair deal.  They should of course try to "win" in that sense.  But they can't win by persuading the neutral to rule in their favor, the way you would try to win in court.  They need to persuade the other side.)   It takes a significant adjustment in approach to move from a litigation mind-set to a mediation mind-set.  When I see parties directing arguments to me as if I were going to adjudicate the dispute for them,  I have to subtly shift their focus toward persuading the other side.  I even heard a judge at an ADR lunch recently, where some of us were suggesting that mediators might play a greater role in resolving discovery disputes, ask whether we were suggesting that mediators "decide" discovery disputes.  Even a judge well-versed in the ADR process does not always appreciate that the mediation process is fundamentally different from court. 

I try to create areas of agreement from the convening stage forward.  If parties choose me as a mediator, I expect them to communicate with each other to agree on available dates for the mediation.  If they can't even agree on that, and I have to intervene, I know we have our work cut out for us.  When we meet, I ask the participants to agree first of all, not to interrupt, and more importantly, to really listen to each other.  To me, that is the most important ground rule, and a much bigger commitment than most people realize.  When we talk about the substance of the dispute, I usually start by trying to find some areas of agreement, or common interest.  The more we work on those, the more we narrow the areas of conflict.  Finally, when it comes time to try to negotiate an agreement, the parties should be practiced enough in the diplomatic arts, that the process can proceed more smoothly.

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