In my 17-year career as an attorney and mediator, I’ve mediated cases ranging from corporate/vendor disputes of hundreds of millions of dollars to very emotionally charged family law issues. There have been a few cases where I firmly believe one side was fully in the right—where one party had the law, the facts, and the truth entirely on its side. The vast majority of cases presented to me, however, were far more ambiguous. It is exactly this gray area that draws many of us to practice law, that makes the Supreme Court so vital, that makes the study of law so important. And yet, litigation is frequently ill-suited to handle this nuance.
In a June 2014 interview for ABC News, Associate Supreme Court Justice Sonia Sotomayor remarked that “[for] every winner, there’s a loser in a court case. When things break down is when people lose the ability to imagine the other side.” At the heart of Justice Sotomayor’s comments—and indeed, at the heart of a great number of legal disputes—is the peril of failed communication and, in turn, failed identification. It is in this space that mediation shines, building a shared understanding of the circumstances in order to find the best possible middle ground.
Mediation: A Brief Definition
The word mediate comes from the Latin term mediatus, meaning “halve” or “to be in the middle.” Mediation is the attempt to settle a dispute, legal or otherwise, through active participation of a neutral “in-the-middle” third party. The neutral mediator finds points of agreement and then works together with those in conflict to agree on a fair result. This is quite different from arbitration, where the third party acts more like a judge and often does not actively participate in the discussion or seek to assist the parties reach their own resolution.
Mediation offers both parties the opportunity to control the process, in a confidential setting, to lower their risk of loss and increase the possibility of resolution. It is an opportunity to reach a partial victory rather than face the potentially significant risk of total loss at trial. And unlike litigation, mediation at its core is designed to help those in conflict work toward a mutually agreeable result. Notably, the parties themselves decide what constitutes a fair resolution. Unlike litigation or arbitration, where the judge or arbitrator is the ultimate decision maker, mediation empowers those involved to control the process of resolution.
When Should Mediation Begin?
One might assume that mediation would be more successful the earlier the parties enter the process, but I have found the opposite to be true. Early in the life cycle of a dispute, parties are often unable or simply unwilling to consider the perspective of their opponents. This helps to obfuscate the most fundamental points of disagreement that fuel the contention. In the beginning, the parties often fight every battle, out of anger or irritated discontent, whether or not the issue at hand is of sincere personal importance. As the process progresses, pleadings, discovery, and the simple passage of time can help to clarify the issues and temper the role—and toll—of emotion. It is at this stage that I have found mediation to be most successful.
The Mediation Process
Clearly the communication process has broken down or the parties would not be in conflict. This means that it is the responsibility of the mediator to rebuild communication, which only can be done by taking control of the process. In my experience, the following steps have been successful in resolving most disputes.
- Step 1: Mediator’s opening statement. Explain the rules and goals of the process. Introduce everyone and encourage each side to work respectfully and cooperatively toward a settlement. Let them know it is possible to have a positive long-term outcome but that it is critical that the mediator controls the process.
- Step 2: Disputing parties’ opening statements. Each party, in his or her own words, is to describe what the dispute is about and how he or she has been affected by it, and to present some general ideas about resolving it. This should be done without interruption.
- Step 3: Joint discussion. To get clarity, the mediator may try to get the parties to discuss and/or clarify what was said in the opening statements.
- Step 4: Private discussion. The private discussion is where each party meets privately with the mediator to discuss both the areas of agreement and disagreement. These private discussions are critical, and if the mediator does not make each party feel truly heard and understood, no progress will be made.
- Step 5: Joint negotiation. After private discussions where the parties can begin to imagine the other side’s perspective, the mediator may bring the parties back together to negotiate directly.
- Step 6: Resolution and closure. If an agreement has been reached, the parties or mediator puts its main provisions in writing. The mediator may request each side or its counsel to sign the written summary of agreement. If no agreement is reached, the mediator should review the progress that has been made and advise the parties of the options and the probable timelines and costs of each: a subsequent mediation, arbitration if possible, or trial and possible appeal(s).
I’m frequently asked, particularly by those from a litigation background, if I have trouble maintaining neutrality while mediating. Naturally I have encountered cases in my career where I sympathized more closely with one party, but this identification is extraneous to my duties as a mediator. As explained above, mediation is about mutual understanding, and as long as I am able to understand both sides enough to guide them to what they determine to be a middle ground, whom I agree with is nothing more than a triviality.
Imagining the Other Side
I was an executive in accounting and finance for more than 15 years before I went to law school. The hardest part of my legal education was learning how to view the argument from the other side. Until law school, my accounting education was firmly rooted in the binary: yes or no, right or wrong, win or lose. And that’s what made, for me and many other legal professionals, the methods of mediation so difficult to comprehend initially.
The first step in any mediation is to get all parties to abandon the notion of right. One of the most effective tools to accomplish this is the use of a low-stakes, neutral example to illustrate the idea of multiple viewpoints. This helps even the most entrenched parties move past the idea of an objectively correct answer.
My go-to example has always been football. Very early in the mediation process, after the parties have presented their positions, I ask them to recall a time when they watched a football game on television. (It isn’t important that they understand the rules or nuance of what was happening for the sake of the example.) Then I highlight that there are at least eight to ten video cameras recording the game from all different angles. These cameras have no bias, malice, or intent; they simply record and broadcast what they see. Yet still, during some plays, it is difficult to make out exactly what happened: While one camera might appear to show a clear foul, another sees no evidence of one. The cameras are simply reporting the events as they recorded them.
Does one video camera make the other video camera wrong? Can both cameras be right when they are only able to see events from one vantage point? Of course they can, but neither can capture the full story alone. I have been involved in some extremely contentious disputes with seasoned litigators and firmly entrenched opponents, and this example has never failed me in setting the stage for a discussion that moves past sidedness and toward resolution. We all bring our own unique perspective to the issues, and only by moving beyond right versus wrong can understanding and compromise begin, allowing mediation to succeed.
Once they are in separate rooms, I ask the parties to tell me their story from their “camera angle.” I then ask that they tell me their counterpart’s story from their counterpart’s “camera angle.” Depersonalizing the dispute in this manner introduces the notion that both parties can be correct in their telling of events, despite different understandings of the circumstances. Further, it enables the parties to begin thinking about resolution outside the framework of winning and losing. Most importantly, it gives back control of the process to the parties involved, helping to reduce the fear and anxiety that unfailingly accompanies litigation.
Overcoming Fear and Anxiety
There have been numerous studies done on people’s decision-making processes when they are able to win something they didn’t have versus when they risk losing something they currently own; the most notable study is “Prospect Theory: An Analysis of Decision under Risk” by Daniel Kahneman and Amos Tversky (Econometrica, March 1979). The idea behind Prospect Theory is that we as human beings dislike losing something we currently have two to three times more than we like winning something we don’t currently have. Thus, in mediation, people tend to make irrational decisions when faced with potential loss.
Parties in litigation are not only faced with the anxieties of conflict but also, by definition, with the very real prospect of loss. When a person is focused on not losing, this mindset triggers a fight-or-flight response. This response is hard-wired physiologically—it bypasses our rational mind, where our more well thought out beliefs exist, and moves us into what might best be described as attack mode.
This state of alert causes parties to perceive most everything the opponents do or say as a possible threat. Their fear is exaggerated and their thinking distorted. Their focus narrows to see only those things that can harm them: Fear becomes the lens through which they see the world. The true strength of mediation is the ability to alleviate fear and fear-based decision making by introducing the possibility of a mutually agreeable solution—a circumstance in which no one loses.
In civil disputes or litigation, once the fight-or-flight response is activated, there is little hope for reconciliation or satisfaction until these feelings are stepped down. This is perhaps the most fundamental responsibility of the mediator: to demonstrate that mediation provides a much better alternative to such conflict, a long-term solution by way of self-guided reconciliation, far removed from the fear and hostility typified and exacerbated by litigation.
Keys to Successful Mediation
- Mediation will be successful only when both sides begin to imagine the other side’s perspective.
- Before any progress can be made, all parties need to feel that the mediator heard them, understood the issues at hand, and knew the importance or relevance of the dispute in their personal and/or professional lives.
- The structured process is necessary to reach a mutually agreeable resolution; it removes tension and any sense of sidedness from the conversation.
- Both sides can be right and still in dispute. Who is correct is a question for litigation or arbitration, not mediation.
- A mutually agreed-upon resolution does not equal a loss for either side.