Here’s a conversation I’ve had many times with business and commercial litigators:
Me (“DS”): So the thing about transformative mediation is that it improves the interaction between litigating parties.
Lawyer (“L”): Ok, well that doesn’t apply to my cases. The cases I work on aren’t about interaction - they’re about money.
DS: Is that right? What is it about the situations that wind up in litigation? Don’t businesses often run into situations where they need to negotiate money with each other? Don’t those negotiations often lead to a resolution without escalating to litigation? I’d suggest that when negotiations break down and escalate to litigation, what has happened is a degeneration of the interaction. In other words, the negotiations have given way to defensiveness and mistrust, such that at least one side believes they need to get coercive with the other side.
Yes, these businesses care very much about the money. But the reason they aren’t able to figure out the money is that the interaction has degenerated. (In fact, the interaction has degenerated so much, that they’re now choosing to spend some of that money that matters so much to them; and at least one side is spending money that won’t wind up paying off through the litigation).
L: Ok, but these guys often say they never want to see each other again. It’s not about the relationship for them.
DS: Yes, I’m not talking about an ongoing relationship. I’m talking about their interaction as they sort out their differences about the money. I’m talking about helping that interaction become more effective for both of them.
L: Ok, but if you bring these guys in the same room with each other, they’ll get hostile and it’ll blow up.
DS: Gotcha! You said it wasn’t about the interaction - that it was more of a cold calculation about the money. But now you’re saying these guys won’t be able to handle a face-to-face conversation. If it were ALL about the money, wouldn’t they be able to have a calm conversation without it becoming destructive?
L: I meant that it’s not about an ongoing relationship.
DS: Ok, fine, as I said, let’s just help them interact constructively around the money then.
L: What these guys need is someone to work on both sides to get them to compromise, you know someone with credibility who can persuade them to move their offers and demands closer together.”
DS: Really? It seems to me that it’s pretty hard for those mediators to be persuasive, because both sides know that the mediator is simply trying to bring them closer together, that he wants them to settle more than he wants or is able to give them useful information about the merits of their case. And the lawyers of course also understand that, so they see it as their job to persuade the mediator to lean harder on the other side. So settlements that arise from those mediations aren’t based on a meaningful exchange of information, but on the results of a manipulation game. What’s more, clients experience that process as such, as a game controlled by the lawyers and the mediator, not as a meaningful process that aids in their decision-making.”
L: Maybe so, but the clients are happy that the case is over.
DS: How about a process that’s likely to end the litigation AND that the clients are likely to find genuinely helpful to their decision-making process?”
L: I just don’t think it’ll work in most cases.
DS: Maybe that’s because you’ve never tried it.
L: I did work with a mediator once who liked to bring the parties together at the start so the lawyers could make their opening statements, but then it usually blew up and everyone got angrier and then he had to separate them.”
DS: What you just described is much different from what I would do: First of all, I’d let them know that I’m there to help them have a conversation (not to have a quasi-hearing where opening statements would necessarily be helpful) and that I wouldn’t be evaluating their case in any way (that information, itself, changes the dynamic, because the parties become aware that there’s no need to persuade me; instead they can communicate in a way that’s more likely to have an influence on the other side). Next, I wouldn’t ask lawyers to make opening statements (though if the parties wanted them to for some reason, they’d be welcome to do so). Next, if things got heated, I wouldn’t separate the parties at the worst moment, I’d support the conversation (which actually makes that blow up much less likely in the first place - people yell less when they know they’re being heard and understood). Next, I’d use skills (that that other mediator probably didn’t have) to continue to support the face-to-face conversation. The result would be the opportunity for the clients to have a meaningful negotiation, seeking and providing the information that they find helpful in deciding what to offer, what to demand, what to accept, and what to reject.
L: Ok, well I’ll keep transformative mediation in mind.
Readers, do you have any ideas for how to make this conversation more effective? Have you had similar conversations? What other reactions do you have to all this?