Oregon State Bar Bulletin NOVEMBER 2013
Legal Practice Tips
Professionalism in Mediation:
Avoiding Common Pitfalls
By Harry Auerbach
Disputes — and their progeny, lawsuits —come in many sizes, shapes and flavors. More and more we are finding that a properly trained mediator appropriately engaging the parties in a properly conducted mediation offers the parties an opportunity to explore and create a settlement or resolution that the parties prefer over litigating their dispute to its conclusion.
While certainly there are more mediators and more mediation programs than there were when I was a young lawyer, there is no grand conspiracy of an Alternative Dispute Resolution Complex that has its own agenda and its own costs, as some would have us believe.1 Mediators and mediation programs offer participants the opportunity to explore resolution of their disputes, which we hope can be done in a manner that is more satisfactory and less expensive to them than litigating to conclusion. Any party in any case who does not share that assessment should decline to mediate or should not agree to the settlement or resolution.
In litigation, the available forms of recovery are limited. Most often, that means reducing the dispute to the payment of money. With a decreasing degree of frequency, equitable relief still is available in some cases, but even equitable relief may not always get to the heart of what the parties really want or need. In mediation, though, the parties can be more creative in crafting the resolution, not just a settlement, of their disputes.
In small claims, FED, family law, workplace and even complex civil cases and victim-offender disputes, mediation can open doors that simply are not accessible through litigation. When the parties have an ongoing relationship, or when they have issues, values or needs that go beyond the particulars of their legal dispute, mediation gives the parties the opportunity to craft their own practical resolution that litigation might not, by itself, allow. Such a resolution often meets the parties’ needs and desires better than an award or verdict.
Exceptional lawyers are sometimes able to help their clients and their adversaries explore these kinds of solutions, but, more often, lawyers advise their clients about settlement based on their legal assessment of the merits of the dispute, the likelihood of success and the consequent value of the claim. Mediators can help the parties and their lawyers explore those factors, and they also can help them explore and describe the underlying personal values, interests and needs in a way that opens them up to a larger and more palatable world of potential resolutions.
A number of factors have affected the way cases are litigated, and they have caused lawyers and courts to turn increasingly to mediation as a tool to help resolve disputes. First, there are a lot more lawyers and a lot more cases than there used to be. Second, cases have become increasingly more complicated and expensive to litigate. Third, the courts have not been able to keep up with their increasing caseloads (justice delayed is justice denied.) Federal and state trial and appellate courts are looking to institutionalized alternative dispute resolution (sometimes called “appropriate dispute resolution”) techniques and programs to reduce their caseloads and deliver justice.
Increasingly, we are seeing courts referring parties to “mandatory” mediation. That may seem oxymoronic (and did to me, when I first encountered the notion), because mediation is inherently a voluntary process. But the Oregon Mediation Association’s Core Standards of Mediation Practice recognize that, at least initially, mediation may be mandatory.2 We accept that as legitimate, as long as parties who are unwilling or unable to participate effectively in the mediation process remain free to suspend or withdraw from the mediation. That is, it may be fair for a court to ask the parties to go to mediation in good faith and with an open mind. But, whenever a party enters mediation and remains unconvinced that participation is in its best interest, we respect the right and responsibility of that party to walk away without a sense of failure.
Not Just Shuttle Diplomacy
Mediation, more often than not, involves more than just shuttle diplomacy and techniques for breaking impasse. Those things can, in a number of cases, help the parties reach a satisfactory resolution of their dispute. Many times, however, parties come to mediation not really knowing whether they are ready to settle or how to settle their dispute. The mediator can help them explore their underlying interests and needs in order to allow the parties to decide whether and on what terms they are prepared to resolve the matter. In my experience, at least, much of mediation does involve face-to-face communication among the mediator, the parties and their lawyers. The nature of the process — including such things as how much of the mediation is conducted in joint session, how much is done in caucuses and how long the mediation lasts — is something for the parties and the mediator to discuss and agree on.
I take issue with the contention that mediation is a cause of increasing belligerence in litigation. Rather, I submit that it is a response to it, and that mediation provides the opportunity for the parties and attorneys to defuse their belligerence. I have found that allowing the parties a reasonable opportunity to “vent” helps them be heard, provides procedural fairness and does frequently lead to more productive conversations. We sometimes forget that our clients often need to understand why, in some cases, a result might be a “good one,” even if it does not seem “fair.”
Moreover, mediation is more than the simple trading of offers and counter-offers. That can be done with the phone, email or even a tweet. Mediation’s purpose is to engage the parties in a conversation designed to help them reach a mutually acceptable resolution of their controversy. See ORS 36.110(6). That typically involves more than trading demands and offers.
Three critical components shape every litigated dispute: the anticipated outcome, the cost of getting to it, and the delivery of substantive and procedural justice. If ever it was a good practice to litigate “to the courthouse steps” and then settle, more and more litigants increasingly find that prospect too long, too expensive and void of fairness. Certainly, every lawyer ought to help his or her client in, and should attempt to explore with his or her adversary, the early evaluation and potential settlement of their dispute. And when they are able to find a resolution that is mutually acceptable, then there is no need to go to mediation. But even if mediation did not exist, the pressures in the court system that fuel the demand for alternative dispute resolution would still exist. Mediation at any stage of the proceeding, but particularly early on, offers the parties the opportunity to eliminate uncertainty and to save time, stress and money by creating a fair resolution of their dispute.
Such a resolution can happen only when the parties exercise their right to self-determination and informed consent, outlined in the OMA standards. If you can help your client reach a fair resolution by sitting down with your colleague as we did back in the day, then do it. If having a properly trained mediator helps achieve that resolution, then do that. These are not mutually exclusive options.
1. “Second Thoughts on Mediation,” OSB Bulletin, February/March 2012.
2. See www.omediate.org/pg61.cfm.
ABOUT THE AUTHOR
Harry Auerbach is a chief deputy city attorney for the city of Portland. He provides volunteer mediation services as a neutral for the Oregon Judicial Department’s Appellate Settlement Program and is a member of the Oregon Mediation Association’s Standards and Practices Committee, which provided guidance for this article.
© 2013 Harry Auerbach