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.

Tuesday, January 26, 2010

Rational Information Overload

I happened to hear a program on NPR this morning talking about a psychology experiment in which subjects were asked to memorize a number, then walk down the hall to another room and repeat the number. The trick was that half the group was given a two digit number and the other half a seven digit number. The second trick played on these unsuspecting subjects was that on the way to the second room, they were stopped by someone offering them a snack, who asked them to choose between a slice of chocolate cake and a bowl of fruit. It turns out that the people who were asked to remember the seven digit number are about twice as likely to choose the cake as the people who only had to remember a two digit number.

Why do people who are trying to store a maximum amount of information (other experiments have shown that most people have trouble holding more than seven digits in their short term memories) choose the less-healthy but perhaps more appealing snack? This result accords with the theory that if we over-tax the rational part of our brain, the emotional part of our brain may take over decision-making. The emotional part of our brain wants cake!

This story reminded me of the dangers of expecting participants in mediation to process a lot of information in a rational way. If we start off mediation sessions with a lengthy discussion of rules and procedures, or jump too quickly into a discussion of the costs and benefits of settlement vs. litigation, we may risk swamping the rational parts of people's brains. That could make it more likely that they will make negotiation decisions based on more emotional "fight or flight" type of responses. It's probably better to discuss less taxing issues at the outset. There are probably good reasons for negotiating a business deal over lunch, and spending the first part of the meal discussing the weather, or sports, or hobbies, or people's families, before moving to the issues that require a rational calculation. There are also good reasons for trying to initiate friendly human interaction at the beginning of a mediation, as well as encouraging people to deal with the emotional issues that contribute to conflict. It may also be a bad idea to ask people to think too much about rules and procedures and the other rational trappings of the litigation process, because that may crowd out their ability to think rationally about how to resolve the dispute.

Wednesday, January 6, 2010

Are Lawyers the Best Mediators?

When acting as a mediator, I try to develop a level of trust and personal connection with the parties who come to me for assistance.  So I might talk about my family, or my hobbies, or my professional background and experience.  Trying to establish a rapport with the parties' attorneys, I sometimes find myself listening to and telling war stories about experiences with various judges, or certain types of cases.  While sharing those stories can be a useful way of talking about the case at issue, there is a danger in doing too much of that.  The danger is that the parties sometimes get left out of the process.  Parties find themselves mystified by too much shop talk.  They may feel that instead of addressing their concerns, the technicians in the room are dissecting their case in the impersonal way that a surgeon operates on a patient, or a mechanic works on a car.

Lawyers bring a host of advantages as mediators of litigated disputes.  We speak the same language spoken by the parties' attorneys.  We have experience in the art of presenting legal and factual issues to the court.  We have a good sense of the likelihood of prevailing on those issues at trial.  And we know what is in store for the parties if they do not settle the case.  Lawyers can use their advocacy skills to advantage in the shuttle diplomacy of mediation, helping each party frame their own case in a way that may be persuasive to the other side.  Mediators also argue the other side's case to the party they are addressing, in a way that relieves a burden on the party's own counsel.  Instead of acting as a neutral, the mediator acts as an advocate for each side in turn.  Lawyers are of course naturals at being able to argue both sides of the same issue.  That's what we have been trained to do since law school.  But our ability to do that, and our heavy reliance on the caucus process (many mediators currently keep parties in separate rooms from the outset of a mediation) may thwart the parties from the face-to-face communication that may be necessary to achieve true understanding or reconciliation.

In researching this post, I came across an interview with a former mentor and employer, Jim Alfini, who said that the system's over-reliance on attorney-mediators can reduce the role of the actual disputing parties.  "This mutes the parties and returns it to a lawyer-centric, not party-centric system." Sometimes the parties, and especially their attorneys, prefer to control the process in that way, and are reluctant to allow their clients to reveal too much of themselves to the other side.  But the parties' advocates, as well as the mediator, need to ask themselves whether stifling the parties, and treating mediation as a formalized legal proceeding, may prevent mediation from fulfilling its true potential.

Lawyers also need to know when to put aside their training as advocates to find out what really caused the parties' conflict, and what has kept the conflict from being resolved. An article by Cris Currie cites studies showing that lawyer-mediators are more inclined to focus on the facts and legal issues involved in a dispute, whereas mediators trained in fields like social work are more apt to try to resolve a dispute by interviewing the participants and developing strategies for solving their perceived problems.  He concludes that mediation is not a natural outgrowth of the practice of law, and that lawyers need to learn a different, more collaborative method of problem-solving in order to become successful mediators.  Mediation allows us to get beyond the sometimes superficial concerns of the law to delve into more deep-seated and complex causes of human conflict.   Lawyers need to become more comfortable with doing that.

(the law firm of McKenzie, Brackman, Chaney and Kuzak)

Monday, January 4, 2010

Are Non-Lawyers the Best Mediators?

If judges are sometimes too judgmental, and if attorneys sometimes have trouble shedding their role as advocates, then the ideal mediator may be a non-lawyer. Non-lawyers bring to the table whatever training they may have as counselors, coaches, social workers, therapists, businesspeople, or teachers. Or they could be part of a growing cadre of people specifically trained in the arts of negotiation and peacemaking. They should be able to see beyond the narrow legal problems of the participants, and deal with their emotional, financial or other interests. Having grown up with a psychiatrist and a social worker for parents, and having observed some counselors at work, I have a lot of respect for people in the mental health field. They have developed or have received extensive training in many of the techniques that mediators of legal disputes attempt to put to use. In some ways, a licensed psychologist or social worker might be considered a true expert, while an attorney or judge acting as a mediator could be viewed as an amateur in using the techniques that may lead to a successful resolution of a dispute.

Non-lawyer mediators may not be in as good a position to provide evaluations of the potential value of a lawsuit in court, or of the costs and other pitfalls of litigation. They may not even fully understand the issues that would be decisive in resolving a legal dispute in court. But in many cases, parties do not expect to get an opinion on those issues at the mediation. They should be able to rely on their own attorney for that. (See this post from the always-reliable Victoria Pynchon explaining that it's primarily the parties' attorneys' job to provide an assessment of their chances at trial.) Often the mediator's job is to support and get the parties to understand their own attorneys' views of the costs and benefits of continued litigation, and perhaps also to listen to the opposing party's attorney's evaluation. Offering a third opinion of the value of the case may be confusing and can even be counter-productive. So if the parties go to mediation without needing or expecting an expert evaluation of the case, they should not be disappointed if the mediator does not provide one.

The problem for non-lawyer mediators is that parties who have been referred to mediation for the purpose of settling a lawsuit, are often still expecting a quasi-judicial resolution. Often they are not ready for something that sounds too much like touchy-feely therapy. Divorcing couples might have some experience with couples counseling, and may be more likely to appreciate a more therapeutic approach to mediating the issues in a divorce, but even they may prefer a more hard-headed, business-like consideration of the costs and risks of trial vs. settlement, when it comes to the task of making a business-like decision about settling their legal claims against each other. Business people and insurance companies are likely to have even more hesitation about submitting to a process that delves into any issues beyond the straightforward assessment of the value of a lawsuit. As a practical matter, non-lawyers also seem to have more trouble getting accepted for some court-annexed mediation programs, and getting lawyers to refer cases to them. (Here's a poignant complaint from mediator Barry Simon about the difficulty of building a mediation career as a non-lawyer. It's not so easy for lawyers or retired judges either!) As the process of mediation becomes better understood, however, one would expect that parties seeking mediation would be less concerned about whether the mediator studied contracts or knows how to try a case, and more concerned about their effectiveness in resolving disputes.

(James Gandolfini and Lorraine Bracco in The Sopranos)