Mediation Is a Process, Not an Event

My family has always enjoyed bicycling, and over the years we have collected a number of books on the subject. One in particular, entitled The Bicycle Touring Book, by Tim & Glenda Wilhelm (Rodale Press, 1980), has a passage with a lesson for those involved in dispute resolution. In describing how bicycle touring, with its emphasis on "smelling the roses," differs from traveling by automobile, the authors (on page 177) state: "For them [motorists], it was just another long day behind the wheel on the way to somewhere else."

For many involved in litigation, mediation is just one event on the road to trial. Mediation is often scheduled only because the court says it must be, or because it is on a checklist prepared by somebody else. The mind set seems to be: "Today we are in a mediation mode; yesterday — and maybe tomorrow — we were/will be in a trial mode." While all litigators recognize that most civil cases do settle eventually, a settlement is usually thought of as a byproduct of good trial preparation; mediation is not considered to be central to their cases.

The skeptic will say, "So what? Strong preparation for trial equates to strong preparation for mediation; the two co-exist very well." I would agree with that statement, as far as it goes. What I am advocating, however, is not a dilution of trial preparation, but an expansion of focus.

Instead of focusing exclusively on how evidence learned in discovery will play at trial, I believe that litigators would be well advised to get into resolution mode right from the beginning. Unless a conscious decision not to settle has been made by the client(s), all actions taken — discovery requested, motions filed, etc. — should keep all forms of resolution firmly in mind.*

One useful approach to take would be to modify one’s visceral responses to questionable discovery requests. Instead of automatically objecting on principle (see, e.g., "I Would Rather be Right than . . ."), consider whether providing the information requested might not further resolution, despite the request not having been "reasonably calculated to lead to the discovery of admissible evidence."†

For example, when I first started practicing law, I was assigned by a senior partner in my firm to defend a personal injury case brought by one of the leading plaintiffs attorneys in my state — one who had been practicing for over 30 years. I suspect that if he had wanted to, he could have eaten me for breakfast. Instead, as soon as he received a copy of my appearance, he called me on the telephone, introduced himself, and invited me to his office to look at his file! When I arrived at his office, the file was waiting for me, superbly organized in a private conference room reserved for that purpose. Just about everything I would have thought to request in formal discovery — including both pre and post accident medical records — was included. As I analyzed the material, I realized that we could bypass a lot of the usual time-consuming pretrial activity and cut right to the chase. My opposing counsel’s act of practical accommodation paved the way to a fair and expeditious settlement. I suspect that 90% of personal injury actions could be handled in just that fashion without any of the parties giving up anything important.

* "Resolution," in this context, includes both trial and settlement.

† Fed. R. Civ. P. 26(b)(1).

Driving in Germany

Back in the bad old days of the Cold War, I was stationed with the U.S. Army in Germany. When I first arrived at my unit in 1967, the other guys (no women then) did their best to fill me in on the local culture, so I could avoid branding myself as an ignorant Ami (short for "American"). One bit of knowledge deemed especially essential to my survival was that driving in Germany was not like driving in the United States. German drivers were regarded by the average GI as extremely aggressive. This information, combined with the fact that there was no speed limit on the autobahns, required a different mind set from what I was used to. I was told that in anything smaller than a five-ton truck, I would have to make the local drivers think I was completely crazy in order to get their respect. If I showed fear, I would be eaten! From what I could see during the three years I lived there, most soldiers got the same advice.

Not all civil litigation attorneys believe that mediation sessions give us a chance to "come reason together." Some lawyers in personal injury negotiations act like GIs driving on the autobahn: pedal to the metal; lips curled in a snarl; slightly wild-eyed look. Former President Nixon called this approach his "Madman Theory."* The goal: to terrify one’s opponents into submission with threats of annihilation.

When your opponents start yelling in a mediation, you must determine whether they are losing their temper, or using it. Are they really crazy enough to submarine the negotiations? Or are they simply trying to distract you from learning that their case is not the litigation equivalent of a five-ton truck? Your response should avoid extremes either way. Don’t yell back; don’t cave in. Instead, very calmly suggest a break in the negotiations. After the other side’s adrenaline level (if that’s what it really is) has had a chance to return to normal — and you have had a chance to reassure yourself of the strength of your own case — suggest resuming the negotiations. You will soon learn whether your opponents are serious or not, and will be better able to decide how — or whether — to get the mediation back on track.

* Stanley Karnow, Vietnam: A History (New York: The Viking Press, 1983), 582.

I Would Rather Be Right than . . .

One of the most dramatic scenes in United States history was played out in Weehawken, New Jersey, on July 11, 1804. Two long-time political antagonists, Alexander Hamilton and Aaron Burr, faced each other with pistols — then a somewhat popular form of alternative dispute resolution — after what could probably be described as a failed co-mediation. As every student of history knows, Burr walked away afterward; Hamilton was carried.

The events surrounding the duel have been chronicled by Ron Chernow in Chapters 41 and 42 of his excellent biography of Hamilton (The Penguin Press 2004).

Burr, then Vice-President of the United States, knowing he was about to be dumped by President Thomas Jefferson in the upcoming national election, had just run for Governor of New York and lost decisively to Morgan Lewis. Hamilton, formerly Secretary of the United States Treasury in Washington’s cabinet, was trying to re-build his law practice after three years of being off the national political stage following the Federalist defeat in 1800.

The immediate cause of the fight was a letter published by a Doctor Charles D. Cooper, in which the author had attributed to Hamilton a number of disparaging remarks about Burr at a dinner gathering in New York a few months earlier. According to Chernow, after detailing several such remarks, Cooper ended his letter by stating: "I could detail to you a still more despicable opinion which General Hamilton has expressed of Mr. Burr." In a June 18 letter to Hamilton, Burr demanded to know what the "despicable opinion" was. Hamilton rather pedantically responded by objecting that the question was too general for him to answer. The dispute escalated over the next three weeks in a series of letters carried between the two men by their seconds, William P. Van Ness (Burr) and Judge Nathaniel Pendleton (Hamilton). Despite the efforts of these two gentlemen to assist their principals to reach an honorable accord, neither of the antagonists would give an inch.

Technically, by the accepted code of such "affairs of honor," Hamilton was correct in maintaining his legalistic stance. Unfortunately, that didn’t change the fact that Burr was a better shot! As Chernow put it: "In a shockingly brief span, the two men had moved to the brink of a duel and were ready to lay down their lives over an adjective."

Based on my experience, Mr. Chernow should not have been surprised by the way this drama unfolded. Even in this supposedly more enlightened age, many negotiations bog down over "the principle of the thing." Recall, for example, how much time was spent arguing over the shape of the table before serious negotiations between the United States and North Vietnam could even get started. Time and again, matters that seem important at the height of a controversy, but which seem utterly ridiculous in retrospect, will impede a settlement.

Of course, it takes a lot to convince antagonists who have "gotten their blood up" to back off and take a bird’s eye view of the situation. But one possible approach to moving beyond "the principle of the thing" might be to ask the parties to imagine how the dispute will be viewed by objective observers 200 years (or even two months) hence.

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.