The Best Compromise That Never Was?

"All government, indeed, every human benefit and enjoyment, every virtue and every prudent act, is founded on compromise and barter." Edmund Burke, Second Speech on Conciliation with America. The Thirteen Resolutions, March 22, 1775.

In the mediation of most civil disputes, the stakes are not as high as they were for England and its American colonies in 1775. The Boston Tea Party and other acts of defiance had resulted in retaliation by the mother country. The port of Boston was closed, additional troops were assigned to Massachusetts, and public dissatisfaction was at a fever pitch. Colonial resistance was met with indignant intransigence by the Crown and Parliament. The situation was clearly escalating toward armed conflict when Burke gave the speech from which the above-quoted passage was taken. He recognized the effort as an eleventh hour attempt to heal a dispute that was fast reaching irreconcilability. Of course, less than a month later at Lexington and Concord, any chance for a peaceful solution was lost.

There are those today who might argue that the issues facing Parliament and America were so important that — like, perhaps, the later disputes over slavery — no compromise was either possible or desirable, and the bloody conflicts by which these issues were ultimately resolved were cathartic. The difficulty faced by the holders of such views, however, is that we will never know. Would we have been worse off if Burke’s views had prevailed — or if the Civil War had never been fought? Or was the suffering faced by the hundreds of thousands of families who lost husbands, sons and fathers inevitable and more than offset by the good that came to society as a whole from the violence?

Regardless of one’s views on the subject, Burke’s speech is a classic in the annals of political theory, and clearly shows that there can be an approach to the resolution of disputes that is at the same time both pragmatic and principled.

Photo of Burke statue in Dublin, Ireland, uploaded to Flickr.com by Chris Bertram.

Yes, Virginia, There Is a Plan

James Madison is known as the father of the U. S. Constitution primarily because he is credited as the principal author of the so-called Virginia Plan. This plan consisted of 15 resolves and was presented on May 29, 1787, the fifth day of the Constitutional Convention. Most of the delegates in Philadelphia that summer had only a loose idea of what they were to accomplish, and were willing to structure the debate on the points laid out by Madison. As a result, the plan became the framework around which the final document approved the following September was formed.

What does this have to do with negotiation or mediation? If one studies the Constitutional Convention, it quickly becomes apparent that, from beginning to end, the event was a high-stakes negotiation among many distinct interest groups. Without Madison’s "first draft," it is uncertain whether there would have been a United States Constitution — or a United States. As it was, the final result certainly carried his stamp.

The lesson to be learned: In negotiation, whether mediated or not, those who write the first draft usually get most of what they want.

The photo shown was downloaded from flickr.com; taken by OZinOH.

If it Wasn’t for the Honor of the Thing . . .

I have a confession to make. I love to try cases. Most trial lawyers love to try cases. Trials allow us to put aside all of life’s other distractions for the duration, to occupy center stage, and to give vent to our swashbuckling tendencies, all while feeling incredibly pumped. People actually pay us to do this!

But our clients, as a rule, don’t share our passion. Their view of trials coincides roughly with the attitude of the fellow in one of Abraham Lincoln’s anecdotes. Upon being tarred and feathered and ridden out of town on a rail, the gentleman was reputed to have said: "If it wasn’t for the honor of the thing, I would just as soon walk."

By going to trial, plaintiffs are risking everything; insured defendants are taking time away from their businesses or jobs (not to mention facing a potful of bad publicity); and claims reps know that the "meter is running" and the bean-counters in the home office are watching.

We trial lawyers should keep firmly in mind that, while our clients don’t want to settle at all costs, their threshold for an acceptable settlement — once they understand all of the ramifications and risks — is usually different from ours. We are the players; they are the stakeholders.

Because of these differences in outlook, mediation tends to be more productive if it happens well in advance of trial, before the lawyers’ adrenalin kicks in, so long as there has been enough discovery that the clients "understand all of the ramifications and risks." See my previous post, "To Every Thing There is a Season."

Should Mediation be Mandatory?

Many courts in the United States make participation in some form of alternative dispute resolution mandatory for most civil actions. See, e.g., N.H. Super. Ct. R. 170(A). By far, the method of ADR preferred by the courts is mediation. Since most lawsuits settle anyway, the theory behind requiring the parties to mediate seems to be that the courts might as well nudge litigants in that direction so that settlements will be more likely to occur sooner, rather than later.

There is some force behind this reasoning. Inertia is probably the primary reason why many cases don’t settle until the parties are "on the courthouse steps," and forcing all the litigants to look at their files and sit down together at the same time can often settle cases that would have otherwise gone the distance.

In my view, when the parties want to settle, this imposition by the court does no harm, either to the litigants or to the public’s perception of the legal system. However, as much as I believe in the process of mediation, some cases are just not suitable for it, and it becomes a useless exercise, doomed to failure from the beginning. In my role as volunteer mediator for the New Hampshire Superior Court, I have participated in many like that. One in which I was involved within the last year is fairly typical — damages fairly well established, but hotly contested liability and an insurance company that clearly indicated it would roll the dice if the plaintiff didn’t reduce his demand to a level that would net him a figure roughly equivalent to the price of a case of beer. The plaintiff could afford to roll the dice too. All participants agreed that it would be stupid for the plaintiff to settle within the insurance company’s range, so the case didn’t settle.

Besides wasting the time of all participants, forced mediations where some or all of the parties really do not want to settle also have the effect of undermining the public’s confidence in the neutrality of the courts. Despite official protestations that mediation is an entirely voluntary process, many litigants and their attorneys maintain the rather cynical view that if they are being forced to mediate, they are really being pushed to settle; and if the case doesn’t settle, those whom the judge perceives as "unreasonable" will have cause to regret it.

The right to a trial in a completely neutral forum is firmly imbedded in our national consciousness. Any policy that has even the flavor of abridging that right should be avoided. Mediation as an option for resolving disputes is now well established in the legal community and the insurance industry. All who are motivated to settle cases are fully aware of this option, and need no nudging by the court to exercise it, if they want to. The choice should be theirs, not the court’s.

Mediation as Anti-Social Behavior

Geoff Sharp, of Wellington, New Zealand (mediator blah . . . blah . . .), has provided a valuable service for the mediation community with his posting entitled "Justices Seek Justice, Not Peace." In it, he calls attention to a critical view of mediation not usually given much press in recent years. Geoff’s post focuses on Owen Fiss’s 1984 article, Against Settlement, 93 Yale L.J. 1073, in which the author suggests that the enthusiastic acceptance of ADR, particularly mediation, overemphasizes the role of the court system as a dispute resolution tribunal, to the detriment of its role as society’s primary instrument of justice. Implicit in Fiss’s argument is that litigants who choose to settle, rather than let justice run its course, often cheat society out of the ability to have the court system address and correct societal ills that go beyond the interests of the individual parties. See also, Don Ellinghausen, Jr., "Justice Trumps Peace: the Enduring Relevance of Owen Fiss’s Against Settlement," also referred to in Geoff’s post.

Putting aside for the moment the question of whether individual litigants should be asked to spend their own money to carry society’s banners into battle (presumably for the honor of the thing), one flaw I see in Fiss’s approach is that it seems to ignore the risk that the courts may get it wrong. Major societal controversies presented to the judiciary for resolution usually have passionate advocates on both sides. Convincing arguments are marshaled both for and against, and the outcome of such matters is usually far from certain. One example cited for the idea that settlement would have been bad for society is Brown v. Board of Education (Ellinghausen, pp 30-31); however, I daresay that for every Brown, there is a Dred Scott.

Preparing (Your Opponent) for Mediation

I have been asked to prepare an article on mediation for publication in a forthcoming issue of the Tri-State Defense Lawyers Association’s Newsletter. The Association addresses issues of interest to defense lawyers, insurance claims people and corporate risk managers in northern New England (New Hampshire, Maine & Vermont).

The article points out that to be truly prepared for mediation of a tort case, defense counsel must do some advance work to prepare the plaintiff for the "business realities" of the process. The full article is available here.