When Mediation is Just Another Tool in the Adversarial System

..” the type of “mediation” primarily used within the legal process is merely an adjunct, a tool, of our adversarial justice system. It is an institutionalized type of settlement negotiation that is a far cry from mediation.

Even when litigated cases settle through “mediation,” rarely have I seen anyone who is pleased with the result. These mediations are often marathon sessions with the parties waiting to see signs of weakness in each other, particularly during the last mile. The only upsides of settling through this type of mediation are the relief from being stuck within the molasses-slow justice system (i.e., years of one’s life) – and, the relief from the further draining of funds.

This is part of a comment from a paralegal and part-time mediator named Debra Healey in response to an article on Huffington post Hawaii touting the benefits of mediation. And she is spot on.

Cary and I work hard…I mean real hard…trying to mediate our cases differently – that is – truer to what mediation really is…not compromise but meeting interests. It is hard when so often lawyers are not in for that process and in fact look to those mediators they know who is going to “get it done” or force the settlement. They really think those kinds of mediators are great. Know why? Cuz they meet the lawyers’ needs. They got the right tech equipment, the space is comfy, they are buds, and they know X mediator is going to force the deal at the end of the day. Look…I’m not saying that kind of mediator might not be necessary sometimes – but any mediator who is trying to be true to the profession and is trying to learn new skills and understand what makes people come to an agreement and really move on knows that kind of mediating might get the deal done but definitely leaves that yucky aftertaste. Furthermore, that deal rarely contemplates the future and how those parties will interact, if at all – that deal only deals with the present and getting the immediate conflict done.

But wait…Cary and I “get it done.” Yup…we do…we have settled nearly all our cases and we know that in most, not all, we have done a good job because we have followed up. So why do we see lawyers continuing to use mediators who force the deal? Well, in addition to the reasons I laid out above, I also believe that the way Cary and I mediate requires lawyers and parties to stop seeing win, lose or compromise as the alternatives and instead see the mediation process as an opportunity to craft a solution that meets their needs. Sounds simple but it is not because so many clients and their lawyers have never examined their needs. Not really….not really looking in to determine if what is on the surface is what is real. It also requires lawyers to start speaking to their clients earlier on about their clients’ real interests. This ain’t easy and often requires a different way of representing and discussing the mediation process. Many clients who walk into a lawyer’s office or mediator’s office, want to hear that they are right and that they are going to win. They have tried reasoning with the other party and now they want justice – well, their version of justice. It takes effort and guts to move people out of that mindset. That does not mean dispensing with legal advice but that advice has to work to help set up the BATNA – the best alternative to a negotiated settlement – and not just be the end-all itself. Unfortunately, though what most of us have come to expect from lawyers is a hired gun. If that lawyer does not meet our expectation of a hired gun – we move on to find one that does. That’s how so many cases end up locked in the lengthy, ugly legal storm and that is why mediation becomes this all-or-nothing compromise.

But as I tell lawyers all the time – your clients listen to you – so if you start seeing interests and stop seeing win, lose or compromise – you can change the tone of representation and the mediation process and you can be a more positive influence to your client. It’s risky I know – it bucks the norm and some clients won’t buy in because of the entrenched mindset of what lawyers are supposed to do. Yet, it is where the legal system is headed and it will make lawyers’ lives less stressful, less conflict-driven, and more satisfying. Also, well after the case is over, your client will remember you far more fondly and as someone who cared and acted in their best interest.