Monday, October 25, 2010

What People Want

I tried doing some unscientific research to find out what people are seeking from mediation.  What I did was to use sitemeter, a tool for measuring web traffic, to identify some of the Google and other searches that led people to my site. I understand that my methodology will mainly turn up search queries that happen to coincide with subjects I am already addressing in this blog.  But such a list of search queries may also reflect how well (or poorly) people understand the mediation process, and what they are hoping to get out of it.  Here is a sampling of some terms people are searching for (all reported verbatim) that led them to my site:

  -Am I more likely to win money in mediation than a lawsuit?

  -Is negotiation enforceable?

  -How to get what I want from mediation

  -mediate free

  -Does adr take away right to trial?

  -Are there lawyers present at a mediation?

  -Do mediators have to be lawyers?

  -attorney malpractice mediation procedural justice

  -Is it good that the other side wants a mediation?

  -won mediation case still do have my money

  -Do you think that alternative dispute resolution is more effective than trial?

I don't see many queries in which the topic of mediation is tied to the goals of peace or reconciliation, or making the world a better place.  What I mainly see are people trying to find out whether mediation will advance their interests and protect their rights, which are perfectly legitimate concerns, but do not necessarily encompass all of the potential benefits of the mediation process.

And here is another unscientific survey of reality show contestants, illustrating similar self-centered and adversarial attitudes:



Remember that only one contestant generally emerges the winner in these shows, which means that if the only goal is winning, the vast majority of these people return home defeated and empty.  After watching this amusing but disheartening video (and another one here), I wonder what happens to those few contestants who approach these competitions in a different spirit, those who might say: "As much as winning is important to me, I also care about the value of the experience and the quality of relationships I pick up along the way."  I'd like to think that such people stand a better chance of winning, in every sense of the word.  It also occurred to me that it might be interesting to design a reality show that rewards cooperation and negotiation, or that results in  "win-win" outcomes.  Would anyone watch such a show?

(by the way, the answers to the above questions are yes, it depends, listen, why?, yes for arbitration but no for mediation, sometimes, no, maybe, yes, I don't know, and yes)

Sunday, October 24, 2010

Words to Avoid

In a caucus with the plaintiff's attorney and his counsel, we were trying to persuade the plaintiff to lower his settlement demand.  Plaintiff's attorney started telling his client that he had to compromise.  As soon as he said that, I saw the client visibly flinch.  This client had no interest in compromise.  Instead he was interested in greater recognition on the defendant's part of the debt that was owed.  I told him he didn't have to settle the case at all that day, and should probably take some more time to think about his options.  I was still hoping we would settle the case that day, but I could also see that this person was not about to be browbeaten into an agreement.  As a result, I think I gained a measure of trust. 

People instinctively resist the idea of compromise.  They want what they believe they are entitled to.  They want justice.  If I as mediator suggest to people that they can't have what they want or deserve, or that they should simply back down on a matter they feel strongly about, they are naturally going to resist. Therefore, instead of telling litigants that they have to compromise, I prefer to tell them that I am trying to get a better result for them than they could obtain by taking their lawsuit to its conclusion.  I help them understand the costs and risks of pursuing their claims to trial, so that they can see that settlement may actually represent a victory. 

We see the same resistance to compromise in politics.  Many Democrats are said to be disillusioned because their leaders watered down their health care and other reform proposals too much.   They would have rather seen the administration fight harder, instead of working so hard to get agreement with the other side.  At the same time, Republican stalwarts have no stomach for compromise either.  Representative Mike Pence told an interviewer recently that "there will be no compromise on stopping Democrats from growing government and raising taxes. And if I haven’t been clear enough yet, let me say again. No compromise. . . . The time to go along and get along is over."

This kind of talk is disheartening to mediators, who know that we never accomplish anything without some give and take.  It seems doubtful that politicians can accomplish much either without making some accommodations to the opposition.  Yet we have to recognize that partisans in public debate, or in private disputes, should not be expected to give in on matters of principle.  They need to either impose their will on the other side, or reach an agreement that can be interpreted as a victory.  For example, in the book Beyond Reason, there is a chapter on how a border dispute between Ecuador and Peru was resolved in an ingenious way, giving one country political sovereignty over the disputed area, and the other country property rights.  In that way, both sides were able to claim victory. 

Agreements that are cast as compromises are more likely to fall apart.  The Compromise of 1850 only held off the Civil War for a few years.  The Korean Armistice created an uneasy peace that has left fundamental issues unresolved.  Some private agreements also merely set the stage for future disputes, or leave participants feeling dissatisfied.  Telling people that they have to compromise may cause them to walk out of the negotiations, or lead to an agreement that they feel was imposed on them unfairly.  I think it is generally better to help both sides win the negotiation, and obtain an agreement that they can feel good about.

Sunday, October 17, 2010

Free Mediation: Part II

Following up on an earlier post, in which I discussed the frustrations of many mediators with pro bono court-annexed mediation, I want to try to figure out where we should draw the line between cases appropriate for free mediation and cases in which parties should be expected to pay for mediation services.  I suggest that the answer to that question may depend on one's view of the role of mediation in the judicial system, and specifically on whether mediation should be treated as "public" dispute resolution process to which citizens should be given access in the same way they should be guaranteed access to the courts, or whether mediation should be treated as a "private" system that allows litigants to avoid the court system in whole or part.

Geoff Sharp, a mediator based in New Zealand, provides links to the three best articles ever written about mediation.  Interestingly, he actually lists only two, and both are more than 25 years old.  Even more interestingly, these two articles provide diametrically opposing viewpoints as to mediation's place in the judicial system.  In the view of Frank Sander, courts should evolve into centers that provide a "flexible and diverse panoply of dispute resolution processes," tailored to the needs of the disputants.  Courthouse personnel would screen cases and send them to arbitration, or fact-finding, or mediation, or some other process, as appropriate.   I have also advocated similar ideas of the potential for expanding the role of mediation in the court system.  On the other hand, Owen Fiss  views settlement itself as an illegitimate process, that should be tolerated but never glorified, because it provides none of the legal protections and public scrutiny that we expect from judges.  Settlement should therefore continue to operate in the shadows of the court system.

Both positions have some merit, and the tension between these two views can probably never be resolved.  My guess is that most mediators would lean more toward Sander's view of the world of dispute resolution, a view that would dignify ADR to the same level as other mechanisms.  In fact, most mediators would argue that mediation is far superior to the expensive, cumbersome and unpredictable  methods of litigation.  We recognize the need for established rules of law, which requires codes and court decisions; we might appreciate the valuable roles of judges and juries; and we believe in the principle of access to justice, but we still think there is a better way for most people to solve most disputes.  But if we believe that peace and reconciliation are just as important "public" values as justice and law, that might lead us to the conclusion that litigants are just as entitled to free settlement services from the courts as they are entitled to the services of a "free" judge, even if their dispute is worth millions of dollars, and they could easily afford to pay the judge to decide their case.  That view may justify courts in assembling panels of attorneys or other professionals who volunteer their services on a part-time basis to help settle cases.  Better yet, it would justify the courts in putting a larger share of resources into paid court personnel who assist litigants in settling cases.

Ironically, if we view mediation as a more "illegitimate" process, seeing it as a way of circumventing the protections of the court system, that would lend more justification for treating mediation as a "private" service that litigants should be expected to pay for by the hour, just as they are expected to pay arbitrators, and just as they have to pay their own lawyers, experts and court reporters even for cases litigated in the "public" system.   Courts should be supported by taxpayers because they provide a benefit for everyone, even those who never set foot in the courthouse.  That benefit comes from the knowledge that when you sign a contract, or enter into any other legal relationship, the courts are always available to enforce those legal obligations, and that encourages people to live up to them.  In contrast, it is less clear that mediation provides a benefit for anyone other than the participants in the mediation, although I recognize that you can make the argument that maintaining peace and good relationships between disputants benefits everyone.  If mediation is seen as more of a private than a public function, courts should consider getting out of the business of providing free panels of mediators to compete with the professionals who are charging for their services, or they should at least steer more cases to private mediation.  And litigants should not expect (except in hardship situations) to be entitled to free mediation services, any more than they should expect their attorney to work for free.

(photo from Kiev Ukraine News Blog)

Friday, October 8, 2010

Underlying Causes

A mediator at a study group I sometimes attend raised a good point about the limits of most mediators' expertise.  He wondered whether it is even a good idea to delve into all of the psychological issues that may be motivating the parties to a dispute, since attorney-mediators are not psychologists or psychiatrists and are not qualified to diagnose or solve such problems.  Sometimes it may even be counter-productive to open the wounds underlying a complicated family or business problem, and it may not be necessary or even possible to resolve those problems to settle the lawsuit.  Personally, however, I usually want to try to find out about the forces that are driving the dispute, at least to some extent, because it is often impossible to resolve the dispute without at least identifying the factors that may be motivating the parties.  I also feel that one of the goals of mediation is to achieve some measure of reconciliation, or at least acceptance of the outcome.  I'm not sure it is even possible to get parties who are personally invested in a dispute to view their dispute in purely rational terms, and even if they could do that, I'm not sure it is possible for them to solve a rational problem such as evaluating the potential value of competing claims in court, without involving them on an emotional level as well.  You would almost have to ask people to view their dispute as somebody else's problem, similar to the way the lawyers might view the dispute, before you could get parties to think about it in a purely "rational" manner.  If the lawyers could get their clients to do that, they probably wouldn't need a mediator to help them identify the issues that are blocking settlement.

Mediators generally try to reach resolution by getting the parties past the emotional components underlying their dispute.  They might be able to do do this by ignoring those emotional issues, but more typically they let the parties "vent" those issues before leading them to a more "rational" approach.  Either approach may be justifiable depending on the circumstances.   But the question whether it is even appropriate for a mediator who first of all, is probably not a qualified mental health practitioner, and second of all, is acting as a "neutral," and not as one side's or the other side's therapist, to deal with parties' psychological or emotional problems is still worth thinking about. 

We could try to answer that question by pointing out the differences between the goals of dispute resolution and the goals of therapy.  In mediation, the goal is to end the conflict, not necessarily to change the inner person, or cure their psychological problems.  We might use some of the same techniques counselors use to help people communicate with each other, so that they can perhaps understand each others' problems better; but we are not necessarily trying to solve the parties' underlying problems ourselves.  And we don't need to know the clinical explanations for people's behavior in order to expose factors that may be exacerbating a dispute, and thereby resolve it.  Sometimes it is enough merely to find out that one of the reasons a family member filed a lawsuit was because they were not invited to a family event, or that an employee was insulted by the way they were treated at work.  Sometimes it is enough for parties to feel that those kinds of grievances have been heard and acknowledged by the other side, to allow them to put the dispute behind them.  Even in a personal injury case, as someone in our group pointed out, where there might not be any emotional issues motivating the decision to file a lawsuit, the injured party may still need to have the insurance carrier listen to and acknowledge their pain and suffering before they can bring themselves to settle the lawsuit.

In addition to exposing and communicating these underlying causes, should we also consider "treating" those psychological factors that may be preventing a person from viewing their dispute in a rational way?  Here is where the absence of standards and practices in the mediation field can lead us into the tricky situation of acting like amateur psychologists.  For example, if a person has difficulty settling a lawsuit because they are paranoid, should we try to reduce that person's paranoia in order to get them to trust the other side enough to enter into an agreement with them?  If a person is prone to disputes because they have an irritating personality (like the character, partly based on himself, that Larry David plays on his television show), should we suggest ways for that person to make himself or herself seem less annoying, so as to make the other side more inclined to settle?   If we see someone who might benefit from Prozac or Valium to get themselves on a more even keel, should we suggest that they seek that kind of treatment in order to help them settle their dispute?  And in the converse situation, if we see a party impaired by drugs or alcohol, should we suggest that they sober up before they agree to something they might later regret?  Of course there are also real psychologists or social workers who do mediation, and I'm sure they do it somewhat differently from lawyers or judges.  Yet I think even those qualified mental health practitioners recognize that what they are doing when they mediate a dispute between two people or groups, is different from what they might do in treating an individual as a patient.  I would be curious to hear other mediators comment on where they think mediators might be crossing the line into practicing a field they are not qualified to practice.

Whether we like it or not, every kind of human interaction, whether in the courtroom or around the negotiating table, is fraught with emotional issues.  To resolve a dispute at trial, the jury, which we might think of as a group of amateur psychologists, commonly uses their collective wisdom to figure out what is really going on beyond what the witnesses are telling them.  To resolve a dispute at mediation, we should also have some understanding of what lies beneath the surface.

(Still from Running with Scissors)