Tuesday, June 15, 2010

Success in Mediation

At a recent seminar, we were discussing the enforceability of agreements reached at mediation.  I asked the instructor whether he would agree that when parties find themselves back in a dispute over the meaning of their agreement, or whether they have even made an enforceable agreement, that dispute in itself indicates that the mediation failed at some level.  He proceeded to tell a story about a very contentious case he had once mediated, where the parties worked over the weekend, almost walked away from the table numerous times, and finally settled on the morning of the scheduled trial, after the judge held off the commencement of trial to give the parties a couple more hours to complete their agreement.  A couple of weeks later, the mediator learned that one of the reluctant parties committed suicide, being literally, as our instructor put it, unable to live with the agreement he had made.  I'm sure this case haunted the mediator, but he tried not to second guess himself, and I would not fault him at all for his heroic efforts in settling the dispute.  I'm sure there are even more cases where a party has been brought to a tragic end by an adverse result at trial, than there are cases of buyer's remorse at making a deal.  Therefore, we can still view a negotiated agreement as a better result for the parties than a litigated outcome in the vast majority of cases.  Even if the agreement is precarious, and even if it falls apart later, efforts to reach agreement are still probably more worthwhile in most cases than resolving the dispute in court.  Yet perhaps we should still be cautious about pushing parties too hard to make a deal.  

Mediators are prone to consider the cases that settle as successes, and the cases that do not settle as failures.  They are heavily biased in favor of reaching agreement, and generally consider continued litigation to be a mistake.  That is natural, and I think that way myself much of the time.  I would argue, however, that failure to reach an agreement at a mediation does not necessarily make the mediation a failure.  Parties may have valid reasons for preferring to resolve their dispute in court, such as where they feel an important principle is at stake and should be resolved with a binding and public precedent.  Parties may prefer to take their chances with the jury rather than accept an offer they view as unfair.  Parties may consider a result handed down  by a judge or jury as more legitimate than one they can reach themselves.  Sometimes a party's internal political or emotional circumstances may allow them to accept a result forced on them by the court, but they cannot agree to such a result themselves.  We have to accept the fact that not all cases should be settled.

I finally read Owen Fiss's diatribe "Against Settlement" published in the Yale Law Journal in 1984, because it was mentioned on Geoff Sharp's website as being one of the best articles ever written in the field.  I do not agree with Fiss, but it is good to bear his viewpoint in mind that settlement can be seen as a somewhat illegitimate, almost shameful process, and not necessarily as the preferred goal of the justice system.  Fiss views the ideal form of conflict resolution as a verdict reached in the light of the hallowed halls of the courthouse, with all of the law's protections and rights made available to the parties.  He is suspicious of furtive deals reached in the shadows of the back room.  He points out that courts are needed to address such problems as the inequality in resources and bargaining power between litigants, and the need for continued judicial enforcement of judgments, as well as to make authoritative interpretations of law.  In this view, settlement can be seen as a "highly problematic technique for streamlining dockets" which "should be neither encouraged nor praised."   As mentioned, I do not agree with Fiss.  I agree with the great judge Learned Hand who said that, "as a litigant, I should dread a lawsuit beyond almost anything short of sickness and death."  I think attempts to resolve disputes without litigation should be both encouraged and praised.  On the other hand, we can profitably take from Fiss the idea that if litigants decide not to resolve their dispute by agreement, their choice should not necessarily be viewed as a failure of the system.  To the contrary, that decision presents an opportunity for the courts to serve their highest purposes.  We should not sneer at all of the procedures the courts have developed over centuries, or deny litigants their right to invoke all of the protections of the law.

I would regard a mediation as successful whenever it allows parties to appreciate the costs and risks of their situation, so that they can make an informed and enlightened decision about how best to proceed to resolve their dispute.  So I would regard a mediation as a failure when the parties do not understand and appreciate their choices.  I would also regard the mediation process as successful when the parties learn to work together in a constructive way to solve problems.  Conversely, I would regard the process as a failure when the parties continue to bicker unnecessarily about issues that are not central to their concerns.  Most of the time, enlightenment and understanding should lead both sides to choose peace, but not all conflicts can be easily "cured," and some must be resolved or perpetuated by other means than mediation.

(John Harvey photo: The fork in the road is a good metaphor for the choice people often have to make in settlement negotiations. One path may lead out of the woods, while the the outcome of the second path is uncertain. A successful mediation can be defined as one that provides greater clarity about the costs and risks of both paths.)


Colm Brannigan said...

Some interesting comments on Owen Fiss and "Against Settlement" are in
Fordham Law Review Vol. 78 December 2009 No. 3


Colm Brannigan

Jan Frankel Schau said...

I think the problem with this analysis is the marketplace still looks for "the closers". My personal success in conducting a mediation which does not settle, but achieves this exchange of information and perspective is tempered by the litigator's future recommendations of using me to settle a case which doesn't "close" at the day of hearing. Yet another conflict for us to reconcile...

Joe Markowitz said...

Colm, thanks for the link. I have started reading some of the articles. It's amazing that people are still so stirred up by Fiss's law review article 25 years later.

Jan, you are absolutely right that the market is generally looking for "closers." And to the extent that that is what the market is looking for, I don't generally see a problem in trying to provide that service. If everyone's primary goal is to settle the case, the mediator should certainly work hard to help the parties achieve that goal. But sometimes you do find people with other goals. So, do we want to push settlement on people who may have strong reservations about settlement? Is "settlement" the only thing that mediators have to sell?

My goal in writing the piece above is to do my small part to convince people that just because a mediation session does not result in settlement, that does not necessarily mean that the mediation was a failure. It is way too simplistic to measure success or failure in mediation by whether the case settled or did not settle. There are lots of other purposes we can achieve in mediation.