Is it all it’s cracked up to be?
En garde! Shall we mediate? For the past few years, a common buzzword has been alternative dispute resolution—and specifically, mediation. What is that really all about?
Mediation was certainly unheard of when I went to law school a few decades ago. We would study case after case, with the goal of learning the law and how to maneuver procedurally through the court system to win our cases.
I recall studying the iconic case Donaghue v. Stevenson—that 1930s British House of Lords negligence decision concerning a snail found in a consumer’s ginger beer. It was all about the duty of care owed by product manufacturers to strangers.
I don’t recall the torts professor talking about whether the parties ever tried to resolve the action through mediation. Perhaps nowadays, the professor might well say, “What can we learn from this case? If you say negligence, you are missing the point. The real lesson is that a good mediator could have gotten this case resolved out of court.”
Then again, the case example would not have been too helpful to law students at all, had the plaintiff’s case settled in mediation. Would the law reports read: “Donaghue v. Stevenson negligence case resolved; settlement terms confidential”?
I wonder what the history of mediation—i.e., a neutral party trying to resolve a dispute between at least two parties—is.
I thought about it. There was certainly no shortage of disputes and wars throughout the ages. Empires bent on conquest, from Alexander the Great to Hannibal to Julius Caesar, came and went. Nowhere in my cursory research did I come across anything like Roman legions gathering at the border with Gaul, waiting for the go-ahead to attack and plunder should mediation—scheduled for Thursday—fail.
You might say King Solomon was a mediator of sorts when he intervened to resolve the dispute between the two women who claimed to be the mother of that baby. Each lady gave birth, one of their babies died and they both claimed the live one was hers. The wise king offered to cut the baby in two and give each party half. The rogue mom of course agreed, making it obvious to the king who the real mom was not. (Good thing it was obvious, as this case could have been a real mess.)
In 1838, President Martin Van Buren facilitated a settlement of a strike by shipyard workers, the first government-mediated labor settlement in American history. You might say there was certainly a lengthy drought between King Solomon and President Van Buren in the mediation timeline.
Mediation was not the fad when I started practicing in the 1970s. Litigation was litigation. You issued a claim, pleadings were exchanged, you went on to examinations for discovery and your case culminated in a trial. Winner take all.
Alternative dispute resolution started to germinate in my jurisdiction a few years later with the advent of the judicial pretrial. The lawyers would get a notice in the mail summoning them to court, where we would attend with our clients and meet with a judge for about an hour or so to try to settle the action.
The lawyers were required to file a short document—a summary of the issues—to give the judge an idea of what the case was about.
The problem for many lawyers was the operative word, short. Merriam-Webster’s dictionary defines short as “having little length.” No doubt, to many lawyers, Tolstoy’s epic War and Peace would fall into this word count definition.
Very often, after listening to some wrangling between the lawyers, the judge would shrug his or her shoulders and say something like, “If this case goes to trial, someone will get their butt kicked.”
Though often helpful, an hour or so was not enough to bring about the desired settlement results.
Mediation started to become popular here in the province of Ontario in the 1980s. A neutral, properly informed person would sit down for a few hours with parties willing to settle.
Another principle of mediation is confidentiality. What is said in the mediation room stays there. You cannot come to court later and tell a jury, “Did you know that insurance company offered us $350,000 at the mediation?”
And for mediation to work, it helps if you have a competent mediator. I have noticed a few styles of mediators:
The courier
This person simply delivers offers and counteroffers to the parties sitting in their respective breakout rooms. The drill goes something like this:
Mediator: They want $1 million. What do you say?
Defendant lawyer: No way. We’ll pay $20,000.
Mediator: OK. I’ll deliver your counter to them.
They offer few suggestions for resolution, as perhaps they want to appear most neutral. Given what they are paid, it might be just as effective—and certainly cheaper—to use an agent from UPS.
Mediator (in plaintiff’s room): They’re offering $20,000.
Plaintiff lawyer: Tell them we’ll take $850,000.
Mediator: OK. Will do.
Plaintiff lawyer (thinking): I’m surprised this guy isn’t wearing that brown uniform.
The former judge
Though knowledgeable, many former judges still think like judges. Often, they have not left their egos back in the courtroom. When they walk into the mediation room, they have that air about them, as if they almost expect some clerk to bellow, “Oyez, Oyez, oyez. All rise.”
They will remind you they were judges for 20 years and they know what’s best for the parties. And of course, they’ll remind the parties of the perils of litigation, saying something like, “If this case goes to trial, someone will get their butt kicked.”
The pusher
This mediator is the opposite of the courier. He or she is fully briefed and gung-ho to get this case resolved. Sometimes, too gung-ho:
Mediator: They want $1 million. What do you say?
Defendant lawyer: No way. We’ll pay $20,000.
Mediator(in defendant’s room): The plaintiff comes across as sympathetic. You do know a jury listening to him could hit you for millions, don’t you? This case is worth settling today.
Mediator (in plaintiff’s room): They’re offering $20,000. As you know, juries are unpredictable. And a bird in the hand is …
At least this mediator works hard, fervently wanting the case to settle.
One problem with the mediation culture is that many lawyers lose the opportunity to acquire trial skills. Sure, given the vagaries of litigation, a just settlement is nothing to sneeze at.
On the other hand, I know of many younger lawyers in practice for several years who have never—or rarely—conducted a trial, jury or even bench. If push comes to shove, can they handle a trial? Should lawyers lament the dwindling opportunities of trial experience?
King Solomon was wise. I think of another wise man, Albert Einstein, who reputedly said, “A ship is always safe at shore, but that is not what it’s built for.”
Einstein also said, “Intellectuals solve problems. Geniuses prevent them.”
What else can I say about mediation? I agree with Einstein, whatever he says.
Updated June 22 at 7:23 p.m. to fix a misspelling in the headline.
Marcel Strigberger, after 40-plus years of practicing civil litigation in the Toronto area, closed his law office and decided to continue to pursue his humor writing and speaking passions. His just-launched book is Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging. For more information, visit MarcelsHumour.com and follow him at @MarcelsHumour on Twitter.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
