A couple of recent experiences as a consumer of mediation services have made me wonder whether the practice is living up to its full potential. In one case, when the mediator and opposing counsel started talking about what was going to happen at trial, I told them that there was no way the case was going to trial. They already knew I had done my best to avoid engaging in motion practice, discovery or other forms of litigation activity, and they also knew that the cost of taking the case to trial would almost certainly exceed the amount in controversy, and that my clients probably couldn't afford it. Therefore I didn't see much point in talking about what was likely to happen at trial. I wanted to talk about a fair and practical settlement.
The mediator was not happy with this approach at all. He told me I should never admit to the other side that the case was not likely to go to trial, since that would take away some of my "leverage." Then he spent a lot of time with both sides talking about the strengths and weaknesses of my clients' defenses to the claim, even though no tribunal would ever adjudicate those. The mediation "worked," as the case settled at the mediation, for about the amount we thought it would, but I found it strange that the mediator was more tied to the adversarial system than I was. This was mediation as it is commonly practiced, in the shadow of the court system. It is mostly focused on assessing the benefits and costs of continued litigation, and forecasting possible trial outcomes, rather than finding much out about the needs and interests of the parties.
Not that there is anything terrible about comparing the costs and risks of continued conflict to the value of settlement. I use that technique to some extent in most of the mediations I conduct, because parties usually want to be reassured at some point that the deal they are contemplating is better than the alternative of proceeding with litigation. But we are not really breaking out of the litigation mindset when we limit the discussion at mediation to trying to predict how the court would resolve the case. We are not practicing an "alternative" form of dispute resolution when we are solely preoccupied with what happens in court. And unless the parties truly care about how a hypothetical court might decide the legal questions involved in their dispute, they do not need to base their settlement on that measure. They are free to resolve it based on whatever values and norms are important to them.
In another mediation I attended recently as an advocate for one of the parties, I also observed that the mediator was spending most of her time talking about how the trial judge in our case might rule on some pending motions and evaluate some of the claims. Though these legal issues were certainly important, I was frustrated to be spending so much time having an academic argument with the mediator about these issues. I think it might have been more productive if the other side could have learned something about the challenges facing my client's business, or if my side could have learned more about some of the factors influencing the other side.
At the end of the day, I finally had a chance to talk one-on-one with counsel for the opposing parties, and found that short discussion more useful and informative than anything that occurred the entire rest of the day. I wondered why the mediator had been so intent on keeping the parties apart all that time. It was not something I was demanding.
We need to spend less time talking about "the case," and more time talking about the parties' interests. We need to spend less time talking about a hypothetical trial, and more time trying to understand what is bothering and motivating the parties. That is how mediation can live up to its potential, instead of operating as a cut-rate imitation of the adversary system.