Arbitration & Mediation

In Praise of "Non-Lawyer" Mediators

By Victoria Pynchon

Tomorrow I'll be speaking at a seminar sponsored by our local Superior Court to acquaint "non-attorney" mediators with the law of contracts. 

This phrase "non-attorney" mediator rankles some conflict resolution professionals.  They often point out that there are no "non-physician" health care workers -- only nurses, physicians' assistants, physical therapists, and the like. 

So let's start with the simplest of propositions. 

Just as doctors are not the only people with the education, training and experience necessary to deliver health care services, lawyers are not the only people capable of delivering justice. 

This is not a radical proposition.  It is a bedrock principle of Anglo-American jurisprudence that twelve "non-lawyers" will (in most cases) be the final arbiters of the merits of any litigated case.  They are a lawyer's BATNA -- the potentially Better Alternative to a Negotiated Agreement.

Lawyers Did Not Create Either "the Law" or "Justice"; They Only "Manage" and Attempt to Enforce the "Law" by Means of Which they Hope to Achieve "Justice"

In Disputing Humor:  Comedy, Folkways and the Internet over at the IP ADR Blog we noted that the academics do not define "law" as "just a set of rules, but a life condition in which [people] are carriers of rights and duties, privileges and immunities."

No formal structure supporting the system of law need be visible. . . Law can be found any place and any time that a group gathers together to pursue an objective. The rules, open or covert, by which they govern themselves, and the methods and techniques by which these rules are enforced is the law of the group. Judged by this broad standard, most law-making is too ephemeral to be even noticed. /*

In other words, we govern ourselves more or less naturally, until a conflict within the group arises. When that happens, the group is "forced to decide between conflicting claims [and the] law arises in an overt and relatively conspicuous fashion. The challenge forces decision, and decisions make law." /*

I've also recently noted that fairness, i.e., justice, is not only hardwired into us, it also governs primate behavior, particularly the much studied Capuchins.

Position-Based Evaluative Mediation    

Having practiced law for 25 years, I often need to be reminded that facilitating settlement calls upon skills outside the "rights and remedies" solutions I spent years learning and decades practicing. 

So why do we teach "non-attorney" mediators about the law?  Primarily to help them conduct position-based evaluative mediations.  In this type of mediation, the attorneys attempt to convince one another and the mediator that they are more likely to "win" than their opponent and, if they do, their opponent will have to pay their client between $X and $Y. 

When I was practicing, I never found this mediation technique to provide tremendously satisfactory results.  I'm a pretty good lawyer.  And I know my case really well.  I've often spent years evaluating the risk of going forward and the possibility of settlement.  If I've done anything, you can be certain that I've done a cost-benefit analysis with and for my client. 

It will take you ____ years to get to trial, which will cost you $________.  You have ______% percent chance of winning and your (or your opponent's) potential monetary liability is in the range of $________ to $____________.  

We have an unpredictable Judge and a downtown Los Angeles jury.

On the other hand, the plaintiff wants $50 million.

Unless I'm having trouble convincing my client to see reason (and I very rarely do) some retired Judge who now makes his living as a mediator, arbitrator or discovery referee isn't going to change my mind about my case analysis by giving my position a quick physical exam on the  day of the mediation.  Listen, we're only litigating the darn thing because the questions are close ones.  Not to mention the cognitive biases that almost assure your failure to convince me that I'm wrong.  (though check out Michael Webster's recent post on Why Hoaxes Work -- citing some of the biases that will largely result in my rejecting your view of the merits of my case.)

So that's the value of position-based evaluative mediation.  Maybe it works well for lawyers who are wet behind the ears, but if you're litigating the kind of complex commercial cases I did, if evaluation is your only skill, absent water-boarding, I'll be in the same place at midnight as I was as 8 a.m.  

Interest-Based Facilitative Mediation 

No matter how sophisticated our clients, they come to us with stories of injustice -- not with stories about how the law can remedy those injustices.  If you don't have a right, there's generally no remedy.  There might be injustice, but, sorry pal, there's not much I can do for you unless you're prepared to pay me to make new law.  

So what do mediators -- particularly non-attorney mediators -- have to offer our clients when the best we can do is say "swallow the injustice and move on."

Quite a lot.  Mediators are trained to look for, capitalize on, and synergize the parties' mutual commercial interests in an attempt to resolve a business dispute that we have reduced to a "legal case."  What are those interests?  Unfortunately, some of them have to do with the parties' understandable desire to escape from the legal process itself.  I'd rather see some of these justice system issues addressed and resolved than capitalize on them to muscle parties into settlement, but the Courts are what they are and the system does what it does -- slowly, cumbersomely, expensively, distractingly, maddeningly, intrusively and unpredictably.

If the parties are engaged in litigation over the existence, meaning or breach of a contract, the interests at stake have already been identified.  The contract represents days, weeks, sometimes years of horse-trading by the parties of one set of interests for another.  The position-oriented evaluative mediator more or less ignores these interests, focusing instead upon his parties' right to enforce or avoid one or more of the contract's obligations; to prove or disprove that their adversary client breached those terms, or, to enforce or escape the contract's burdens based upon claims for and defenses against, for instance, fraudulent inducement.  Then you have all kinds of interesting legal issues like the statute of frauds and parol evidence; the canons of contract construction; and, the intersection of fundamental public policy and the parties' ability to contract for whatever and however they like. 

Juicy legal issues.  Bad for client.

A facilitative interest-oriented mediator starts by asking what the parties were attempting to accomplish in the first instance; why they gave up certain rights or remedies at the time of contracting; what made the deal break down so spectacularly that they now have four attorneys and two expert witnesses attempting to extricate them from their contractual relationship with an equally well-heeled and represented adversary. 

Unless they're bankrupt (which often accounts for litigation) the business people are highly likely to continue to have products, services, chains of distribution, networks, access to people in power, technology, information, and prospective commercial advantages that can be traded and memorialized in a contract that doesn't necessarily flow from a rights/remedies analysis.  In fact, it flows much more easily when a skilled interest-based mediator assists two businesses in dove-tailing differences and synergizing similarities for the purpose of increasing the well-being of both at neither's significant expense.

Do you need a lawyer to do this work?  Not really.  It's certainly helpful to have the consultation of attorneys to remind the parties of the alternative to an agreement when their negotiations begin to run off the rails -- i.e., more "litigation therapy" as my friend Judge Alexander Williams likes to call it.  As I've often said before, I follow Colin Powell's dictate that the person best situated to make a deal is someone who more or less intimately knows the other guy's "decision cycle."  Often that person will be in business themselves.  In other cases that person is just really, really good at building trust, in which case both parties begin to feel free to tell the mediator what their decision cycle is. 

In any event, I know that I -- an extremely experienced, savvy, "law geek" -- get better negotiated results when I use my mediation skills than when I rely upon my legal knowledge.  I also know that my tendency to be pulled into position-based evaluative negotiations generally does the parties more harm than good.

The Bottom Line?

Mediation is its own profession with its own theory and practice.  We're not the therapists of the justice delivery business.  But we're not its lawyers or judges either.  We're negotiators and patient advocates.  We help patients communicate with their physicians and with their fellow sufferer across the hall.  It's good for us to understand what the doctor means when he/she lapses into doctor-speak.  But it's not really necessary for us to do our job.

Why do I title this post "in praise of "non-lawyer" mediators? 

First, because we owe the entire mediation profession, and much of its theory and practice, to people who wouldn't know a legal remedy from a truck mounted bitumen sprayer -- sociologists, anthropologists, community activists, psychologists, and, yes, legal academicians (who aren't lawyers really -- with all due respect). 

And second because they put up with a huge amount of horse dung about their supposed inability to mediate "litigated" cases without a 45-minute lecture on contract terms.

Let's see.  Agreements.   Children make them and know who to ask for relief (someone in authority) when they're broken.  Adults have been making them in commercial settings far longer than there's been a formal rule of law to "interpret" and enforce them.  I make an offer.  You accept.  We both do what we say we were going to do.  If we don't, we're morally obligated to pay for any damage caused by the breach of our promise.

Yes, I know contracts are much, much, much more complex than that.  I've litigated the meaning of a few sentences contained in contracts filling several Bekins boxes by way of which one major petroleum company transferred the assets of its entire Canadian operation to another petroleum company.  Lots and lots of juicy legal issues. 

And yet, at the end of the day, it mostly comes down to fairness -- to a resolution that would seem reasonable to -- hey how about that! -- twelve "non-attorney" adjudicators.  

*/ See, Weyrauch and Bell, Autonomous Lawmaking: The Case of the "Gypsies" (1993) 103 Yale L.J. 323 (1993) quoting Thomas A. Cowan & Donald A. Strickland, The Legal Structure of a Confined Microsociety (University of California, Berkeley Working Paper No. 34, 1965). See the Weyrauch book on Gypsy Law here.

Full post as published by Settle It Now Negotiation Blog on May 26, 2008 (boomark / email).