Oct 02, 2019
All I Really Need to Know About Mediation I Learned in Kindergarten
Oct 02, 2019
By Gordon D. McAuley, Esq.
“Live a balanced life.”
Robert Fulghum’s poem, “All I Really Need to Know I Learned in Kindergarten” reminds us of the guidelines for living a good life in our global schoolhouse filled with other classmates. Arguments sometimes result from forgetting these guidelines. Resolving those arguments, or “lawsuits,” often is the concern of a mediator. Mediation offers litigants a way to avoid the expense, unpredictability, and general chaos of facing a judge or jury armed only with the show and tell lawyers think they can sell to their clients’ fellow students. Most lawyers who have tried a few cases know that the judge or jury seldom is as “smart” or predictable as the lawyer expected (or told her client). We often are surprised by an outcome that does not meet our very rational and intelligent predictions. In fact, after getting the verdict, about fifty percent of litigants are very surprised and disappointed because the verdict favored the other side. Tantrums often follow those verdicts, “unbalancing” the lives of those involved. This article discusses the basic practices for achieving a successful mediation from the viewpoint of a mediator long removed from kindergarten, and will provide some of his, and Mr. Fulghum’s, insights into the process of dispute resolution and how to get along with our fellow classmates. These observations likely will sound familiar to anyone who attended kindergarten.
“When you go into the world, watch out for traffic.”
If your client is the plaintiff trying to remedy a wrong, or the defendant looking to patch up the claims alleged against it, litigation is a highly charged, emotional road trip. Imagine the kids screaming in the back seat for months without end. And, while certainly expensive, the annoyance of litigation costs often is far exceeded by the emotional tolls and detours of extended fighting. Once a lawsuit is filed, a sandbox slight becomes a full-scale tantrum and any prior totally cool relationship with your classmates may never fully recover. The longer the journey lasts and the more roadblocks encountered, the more the financial and emotional investments of the parties and their counsel compel them to seek a final “victory” to justify that investment. Those litigation travel costs are even more wringing when the opponent is an acquaintance, neighbor, business associate, or former spouse. Business litigation also diverts employees and management from more productive pursuits, miring them in discussion of past problems rather than exciting them with the prospect of graduation to new business success.
“Hold hands and stick together.”
The wisdom of a mediated settlement has gained such wide recognition that trials now are becoming rare, as are trial lawyers who have tried more than a handful of cases to a jury. A good settlement makes sense and allows the parties to resolve their differences without handing the outcome to twelve classmates picked for their inability to avoid jury duty (“the dog ate my homework” does not work), or excluded because they have subject matter experience that could be useful in deciding the dispute. Thus, the following are observations about what elements contribute to a successful mediation and how the mediator can create the environment for settlement. And, while holding hands with your classmates after a settlement is a reach, the kids might still be able to play together again.
“Wash your hands before you eat.”
What makes a good mediator? First, the mediator needs training to be effective. Why training? Isn’t being a litigation lawyer with subject matter expertise enough? NO. Being a good mediator takes skills that attorneys lose in law school, and do not develop in a litigation practice.i For example, it is critical for the mediator, like your kindergarten teacher, to be a careful listener. Litigation attorneys are good at thinking on their feet, but often are bad listeners (your closest classmate may confirm this). They typically are busy thinking of responses to an opponent’s courtroom arguments before the opposing counsel finishes her sentence. Many states require mediators to complete significant coursework to become a certified mediator. From your author’s experience, every hour of the coursework is important for learning to view a matter neutrally, to suspend judgment, to become a better listener, and to gain that most essential component for successful mediation (and for kindergarten teachers): patience. In other words, mediation training deprograms our law school training. Mediators need to wash their hands of that law school and litigation experience to be effective mediators.
“Put things back where you found them.”
A mediator must listen not only to what is being said by the parties, but also to what is not being said. The mediator must identify a person’s real, but often unshared, concerns. That is, what really is driving the plaintiff’s litigation or the defendant’s defenses? A demand for money, typical in civil litigation, sometimes is really a plea for acknowledgement that the plaintiff was hurt, or was “right.” Plaintiff often is looking for sympathy, validation, or an apology. An apology can be a powerful contribution to the settlement process. Even if the defendant does not admit any responsibility for the plaintiff’s complaints, an acknowledgement of the plaintiff’s problems often is an important step to resolving the lawsuit. Likewise, a recalcitrant defendant may feel betrayed by the plaintiff, and have significant emotional, as well as financial, concerns that must be addressed before a settlement is possible. Settlements may allow classmates to return to their pre-dispute classrooms.
A mediator also must suspend judgment. That is, the mediator truly must be neutral. This is difficult for everyone, but especially for an experienced litigation lawyer who takes sides in every matter that crosses his desk. The litigation attorney weighs every factor to determine how it affects the client’s case. However, the attorney also might unconsciously ignore information if it does not fit within her trial theme.ii If it does not, the attorney diminishes the weight of, or even fails to hear, contrary evidence.
In a neutral, or “facilitative” mediation, the mediator is not there to judge who is right or wrong. Doing so colors the mediator’s view of the case, and may subconsciously affect the way he or she helps to navigate a resolution. Pondering who is “right” creates a conflict for the mediator who is trying to find a prescription to cure the malady of litigation. A good mediator helps the parties decide a successful remedy for the damages alleged in the lawsuit, including any unstated issues that are motivating the dispute. If a party thinks the mediator is being unfair, and biased against that party, the mediation is doomed to failure. The mediator will get a well-earned “F” on his report card.
“Don’t hit people.”
Perhaps the most critical attribute of an effective mediator is patience. Neutral/Facilitative mediations follow a pattern: they do not settle quickly. Each side believes they are “right” and urges the mediator to get the other side to compromise to achieve a fair settlement. In almost every lawsuit, however, each side has positive and negative aspects to their case. The mediator needs patience to get the parties to acknowledge the “bad” parts of their case when they only want to focus on the “good” parts. Highlighting the bad parts is not judgment by the mediator, but rather a Socratic method to get the party and its counsel to honestly calculate the possible effects of the other side’s arsenal. Thankfully, your author never has been hit after discussing the “bad” parts of a case.
Another reason for patience by the mediator, and especially by the parties, is because compromise is painful, and we all try to avoid pain. It takes time for a party to accept less, or pay more, than they “should.” The mediator needs to understand that compromise is difficult for people and cannot be hurried. Small steps are sometimes frustrating for the parties, but mediators who push for big steps can end up pushing parties right out the door without a settlement.
A mediator substantially increases the chances of settlement if she creates the environment for specific critical, cathartic stages to happen. Your author begins his sessions by going around the table and asking every participant if they are there to settle the case. Making a public statement of that desire can change the focus of participants from getting free discovery, to looking for common ground. Next, plaintiff needs its day in court. For many plaintiffs, the mediation is their first chance to explain the case to a neutral party. This can serve as the plaintiff’s forum to get it off his chest. This cathartic moment can be the first stage in getting the plaintiff to resolution. Without that feeling of being heard and understood, the plaintiff is less likely to settle the case. For the defendant, this also may be the first occasion to assess what impact the plaintiff might make on the trier of fact. This is particularly important where a claims adjuster is attending the mediation.
“Draw and paint and sing and dance.”
Plaintiff’s attorney should make an opening statement. This presents a stage for her to demonstrate to her client, and to the opposing counsel, that a competent advocate is handling the case. It also lets her client and defense counsel know that plaintiff’s attorney understands her case completely, has analyzed the issues and legal theories, and is prepared to proceed to a successful trial. Likewise, defense counsel needs the opportunity for an opening performance to accomplish these same goals.
“Say you’re sorry when you hurt someone.”
The final necessary catharsis is for defendant to participate in the mediation, and demonstrate concern about the case. Defendant (and counsel) must actually listen to what is being said by the other side. An acknowledgment by defendant of plaintiff’s concerns may help plaintiff let go of the pain, and look for resolution, even if an apology by defendant is not appropriate.
“Play and work some every day.”
Whether it is the named defendant, or the insurance company claims adjuster, a decision maker needs to play and work in the mediation: that is, be part of the process. The subtleties of changing settlement dynamics must be experienced at the mediation. Having the decision maker on telephone standby to get only second-hand reports of those dynamics may significantly reduce the chance of settlement.
“Be aware of wonder.”
The mediator must project a positive demeanor. When it looks like the parties have gone as far as they are prepared to go, and settlement is still just a remote possibility, the mediator must remain positive and instill confidence in both sides that a solution is available. This goes beyond merely having patience, and requires an optimism that is not the stock and trade of litigation lawyers. The mediator should have faith in the mediation process because he knows that given enough time and motivated parties, mediation produces settlements.
“Clean up your own mess.”
These comments are addressed to neutral mediation. There are other mediation models, including the one where a retired judge (school principal) or mean old trial lawyer tells each side that their case is a miserable failure, and only a fool would take it to trial. This is called an evaluative mediation. While that method is sometimes successful, a neutral mediation has the advantage of the parties choosing the terms of settlement. There is far less chance of a settling party’s remorse undoing a settlement the day after a neutral mediation, than after having second thoughts about a settlement impressed upon it by an authority figure. Besides, what attorney wants to hear that he cannot properly evaluate a case?
“Warm cookies and milk are good for you. Take a nap every afternoon.”
There you have it: kindergarten technology to cure the common lawsuit. The settlement will be on terms each classmate agrees upon. How many students handed a report card (i.e., verdict) can make that same claim? After you settle, treat yourself to warm cookies, milk and an afternoon nap.
i In fact, law school training changes the personality and perception of lawyers from what they enjoyed on entering law school. We become more analytically abstract, and diminish our innate ability to deal with emotional and interpersonal contact. Law school trains us to be less flexible, bad at active listening, and to lose our ability to recognize the importance of mutual respect, equality and security, i.e., the soft skills. Guthrie, The Lawyer’s Philosophical Map (2001) 6 Harv. Negotiation L.Rev. 145. In other words, we lose our kindergarten skills.
ii The fancy terms are belief disconfirmation and cognitive dissonance. Harmon-Jones, A Cognitive Dissonance Theory Perspective on Persuasion in The Persuasion Handbook: Developments in Theory and Practice (2002).
Gordon D. McAuley is of counsel to Williams & Gumbiner. He represents transportation and general business clients in drafting commercial contracts, and in business litigation matters. Williams & Gumbiner LLP, San Rafael (Bay Area), CA (415) 686-5508