Wednesday, March 30, 2011


Twins, especially before they learn to speak our language, seem to share their own secret language, and communicate in ways that outsiders cannot understand. The two boys in the video clip below (well worth watching, even apart from its adorableness) also demonstrate that the words spoken in a conversation are much less important than we think they are. Perhaps intelligible language even distracts us from understanding the real substance of a conversation. When the words are unintelligible, that allows us to observe more closely the gestures and facial expressions that constitute most of the real communicating that people engage in.

I might be fascinated by this video because I have twins of my own (teenagers now), and I still remember similar scenes of them. (I would post my own home movies, but they would probably not appreciate it.) But I also relate to this video because it reminds me of some of my best moments in mediation. Some of my most successful mediations sound to me just like this video. That's because I don't always understand the substance of the discussion as well as the participants do, although I try to, and I don't necessarily even need to understand the points they are making. The disputants have been living with the controversy for months or years. They have things to say to each other that they need to get off their chests. I, on the other hand, don't have a stake in the outcome, so I am not trying to push one particular point of view over the other. I don't always know what needs to be said. I just want to make sure that dialogue is taking place. Most importantly, I want to make sure that the participants are paying close attention to what the other side is saying, and demonstrating that they hear and understand it, even when they disagree. So when I see a dialogue like the one in this video, all I have to do is nod my head and encourage it to continue.

Of course, I know babies well enough to know that, as with litigants, a conversation like this one can turn ugly in a second. The mediator's role is to step in when that happens. Notice that near the end of this video, each party in turn looks back at the mediator (that would be whomever is holding the camera), perhaps for guidance and reassurance. Maybe it's comforting for the participants in any dialogue to know that an observer is present to help keep the discussion civil.

Saturday, March 26, 2011

Knee Jerk Responses

I did a piece this week on my political blog, discussing, as many others have, Newt Gingrich's recent inconsistent statements on our policy toward Libya.  One week he was for all for establishing a no fly zone and getting rid of Qaddafi, the next week he said the US should not have intervened. Some accused Gingrich of flip-flopping. I do not. What I accuse him of is reflexively setting himself against everything President Obama is for, and for everything the President is against. Since we hung back several weeks before intervening militarily in Libya, Gingrich attacked the administration for that. Once we intervened, Gingrich attacked the administration for that. I'm sure some of Newt Gingrich's supporters prefer this stance of unrelenting opposition, but I have to think a lot of voters looking for a more coherent, logical approach, must be turned off by it.

This behavior strikes me as similar to the posturing that parties in conflict often adopt. Parties to a dispute may have such suspicion and distrust of the other side that they reflexively oppose anything and everything the other side suggests. Sometimes for tactical reasons, parties believe it advantageous to contradict or oppose anything said or done by the other side. When parties are sent to mediation, they may continue these tactics. They don't really listen to what the other side is saying, instead just waiting their turn to say their piece. They are distrustful of everything proposed by the other side, constantly questioning their motives, attacking their veracity, and finding flaws in their positions.

I want to raise the question whether that is even a good way to litigate. Is it advantageous to fight over everything, or is it better to choose your battles? Does it help your own credibility to question everything the other side says, or is it better to limit points of disagreement to areas where there are real substantive differences? One "advantage" of a strategy of unremitting hostility toward the other side is that it drives up the cost of resolving the dispute, which sometimes pushes a case toward resolution. Generally, however, such a siege strategy imposes unacceptable costs on both sides. There are also some tactical reasons why a trial lawyer might not want to concede too much, or appear too accommodating to the other side, even on points their side is likely to lose. Sometimes it might be a good idea to take a few unreasonable positions, so that you are more likely to win the important ones. In mediation, there is also a respectable strategy, backed up by research, called anchoring, which suggests that parties taking extreme or unreasonable positions are more likely to obtain a deal favorable to their own side.

On the other hand, a policy of knee jerk opposition to the other side, in addition to driving up the costs of resolving the dispute, also may make it harder to get the dispute resolved at all. Unrelenting opposition creates negative energy; it exacerbates hostility; it provides the other side with additional reasons to oppose your suggestions. Trying to understand and appreciate the other side's position creates positive energy; it encourages the other side to respond reciprocally; it provides incentives for reaching additional areas of agreement.

Friday, March 18, 2011


What a shame, I told the participants in a mediation recently, that you people did not call me when this controversy started as a small, almost neighborly dispute, instead of waiting until it snowballed into a giant lawsuit. In this case, the plaintiff's claimed damages had greatly escalated due to the delay in resolving the problem. That can happen in real estate or personal property disputes where a property might sit vacant or in deteriorating condition for a long time, and it can also happen in contractual disputes where the harm to one or both parties' businesses increases by virtue of the continuance of controversy. It can happen in employment litigation when a party's focus on the injustices of the past interferes with their prospects of becoming obtaining a job in the present.

Another thing that can make cases snowball out of control is attorneys' fees. In this country we are not accustomed to worrying about the other sides' attorneys' fees, because the general American rule is that each party bears their own fees. Cases in which either a statute or contract provide for attorneys' fees, however, require a different calculation. In those cases, the amount of fees can often dwarf the amount in controversy, and the claim for attorneys' fees often becomes the tail that wags the dog of the whole dispute. Another way to think of the difference is like this: if the lawsuit does not allow for attorneys' fees, the money the parties have to pay their attorneys is a sunk cost they will never recover.  But if attorneys' fees are recoverable, the case is more like a poker game, in which all the money spent on attorneys gets added to the pot the winner may recover (except that the judge, with even more power than the casino, may entirely disallow, reallocate or reduce those potential winnings).

Both factors were present in the case I'm thinking about. Deteriorating property, and accelerating attorneys' fees. Do people think about those factors at the outset of a controversy? In my experience, not sufficiently. If they did, they would put a lot more effort into resolving a dispute before it can even turn into a lawsuit, instead of making threats, charges and counter-charges, that can easily turn a relatively small problem into a gigantic problem. In such cases, the usual calculation that the cost of litigation might finally make the other side throw in the towel does not always hold. Instead, driving up the cost of resolving the case might make the other side consider it more and more worthwhile to continue to litigate, in hopes of recovering the attorneys' fees pot of gold at the end of the rainbow.  Litigants and their attorneys are motivated to keep fighting to obtain ever-increasing rewards, at the same time viewing the considerable time and effort they have devoted to the case so far as an investment they have difficulty abandoning. Nobody likes the idea of cutting their losses.

When a case spirals out of control, and people are finally forced into a mediation to attempt to resolve it, there are a few things a mediator can do. One is to warn the parties that if they don't resolve the dispute at this stage, it is only going to spiral out of control even more. An escalating controversy may present the prospect of increasing rewards, but it also presents increasing risks. Another way to de-escalate a conflict is to try to help the parties remember the relatively small problem that started the whole mess, rather than all the things that have happened since the dispute started that have exacerbated the problem. Yet another approach is to ask parties to put aside their arguments about who is right and wrong in the dispute, and focus on trying to maximize the value of the deteriorating asset. The main thing is to help parties realize that by continuing to litigate the dispute, they may only be creating a bigger and bigger hole for themselves, from which it is only going to get harder and harder to escape, and it is time to stop digging.

Tuesday, March 8, 2011

Does mediation threaten lawyers?

I remember hearing a lawyer joke about a father taking his son into his law practice, then going on the first extended vacation he had taken in many years. When he returned, the son said, "Great news, dad, I settled the Jarndyce case!"  Shocked, the father replied: "You fool! Don't you realize that case put you through law school? Now what do we do to keep the practice going?"

This joke came to mind when I read a guest post on Karl Bayer's Disputing blog about a planned lawyers' strike in Italy in response to a new statute mandating mediation prior to filing many kinds of civil cases. It seems these Italian lawyers might be worried about the prospect of seeing too many of their clients resolve their disputes without needing to hire a professional to file suit in court. Is fear of losing business the main motivating factor behind the lawyers' hostile reaction to this new law?

On second thought, I can think of some potentially legitimate reasons for concern about such a proposal. For one thing, making pre-filing mediation mandatory could be seen as contrary to the whole cooperative spirit of mediation.  For another, clients who decide to proceed to mediation without representation might be in danger of waiving rights of which they are unaware. And clients who are required to jump through a settlement hoop in advance of filing suit might also be wasting time and money, in cases in which they would obtain better results by dragging their adversary to court as quickly as possible. Thus, I would not automatically assume that attorneys are only thinking about their own pocketbooks in demonstrating against this new law. They might also be trying to serve their clients' best interests.

We should pay attention to lawyers' concerns for litigants' rights, and we should continue to strive to protect access to the justice system. At the same time, we probably should not worry too much about the potential threat to lawyers' incomes arising from increased reliance on mediation in the courts. I have confidence in the ability of trial lawyers to figure out ways of creating a need for their services in any justice system. I even think that expanding the use of mediation to settle cases, as opposed to the current practice of inducing settlements by means of the high cost of discovery and motion practice, should actually free trial lawyers to try more cases, and should help clients find more satisfaction with their attorneys' valuable services.  Or, as one trial lawyer, Abraham Lincoln, is supposed to have said:
Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.

(still from The Lincoln Lawyer)