Thursday, September 10, 2009

Deus ex Machina Mediation

Deus ex machina literally means "God from a machine," and refers to the practice in ancient Greek drama* of bringing in a god (lowered to the stage toward the end of the last act by a crane or on a piece of scaffolding) to magically solve all the problems created during the course of the play. Merriam-Webster Online defines the term in context as "a person or thing (as in fiction or drama) that appears or is introduced suddenly and unexpectedly and provides a contrived solution to an apparently insoluble difficulty."†

Some litigants approach mediation with little or no preparation, no clear vision of the result they want to achieve, and no plan as to how to proceed. The idea on each side seems to be that it is the mediator’s job to somehow convince the others to accept their position, without having to present a clear reason for them to do so beyond saying something like: "We are confident that a jury in this county will go along with us." The mediator is then expected, by means indiscernible to mere mortals, to get everyone to agree to a solution somewhere in between the parties’ positions. In reality, the mediator is reduced to shuttling back and forth like Henry Kissinger, unable to say anything more illuminating than "[d]o you realize you might lose this case?" Although such mediations do sometimes lead to settlement, I suspect that the same results could have been achieved by exchanging a series of e-mails, without the need for a mediator.

For a mediator to help parties settle a case, the parties and their lawyers normally have to work as hard as, or harder than, the mediator. They must: (a) know their cases thoroughly; (b) be imaginative and flexible; (c) know roughly where they want to go; (d) have a plan as to how to get there; and (e) be prepared to give plausible reasons for each step taken. If the participants have done their homework, then mediators have many tools to smooth the process and help the parties arrive at a mutually satisfying solution.

As is the case with most human endeavors, hard work, sweat and preparation are necessary to get the job done. Sorry, but as Vernon Dursley put it: "There’s no such thing as magic!"‡

* I have no idea why it’s a Latin phrase, rather than Greek.

Merriam Webster’s Online Dictionary (10th ed).

Harry Potter and the Sorcerer’s Stone, Chris Columbus, Director (Warner Bros. 2001).

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