Many people who use the National Conflict Resolution Center (NCRC) for mediation of their litigated cases, come to the process wanting more than one thing. They want to settle their case so that they do not have to spend any more time and money on the matter. They also want to feel that they have “won” and have had their “day in court”. What does that mean to most people? It means that they have a chance to share their opinions, describe their feelings, and detail the harm they have suffered in a public setting in which a group of like-minded people (jurors) will agree that their view of the facts and/or the law is correct and the opponent’s is incorrect. Most lawyers recognize that a day in a “real” court seldom gives a party such an opportunity. They also understand that there is risk in going to court, that the costs, in terms of time and money, should be avoided where possible. They know the case is likely to settle before trial as over 90% of filed cases settle before trial.
A mediator with trial experience in a particular subject area (e.g. business, construction defect, employment, environment/land use, personal injury, homeowners association, real estate, or probate) can help the attorneys and their clients assess what might happen if the case were to go to trial. As they weigh the likelihood of the desired result relative to the risk and cost, mediators can help parties understand the value of settling the case at the mediation. But, most parties want more.
Sometimes the client does not want to accept an analysis even thought it makes logical sense. When logic takes a back seat to emotion, a skilled mediator recognizes an underlying need of the client: he or she wants his/her “day in court”. How can that happen in mediation? One way it can happen is through a joint session in which the parties have a chance to hear and be heard. If a party does have the opportunity to speak up about what happened and how it affected him/her, there is often an observable sense of personal satisfaction from having stood up for oneself. If the person receives some feedback that demonstrates even just a thread of understanding from the other party, it increases the likelihood that this party will be ready to settle the case and move beyond the lawsuit. The parties benefit more if they are able to acknowledge each other’s points of view, but if that does not happen, the mediator’s ability to acknowledge the situation might be enough to allow the person to move in the direction of settlement.
In many cases, the plaintiff and attorney come in asking for money damages. They insist that there is nothing else but money that needs to be discussed. They might be vehement that they do NOT want to be in the same room as the other person, and the mediator should shuttle back and forth between the parties to convey their respective points of view to each other. Experienced mediators know that, despite what the parties say, emotions, a large part of what makes us human, are frequently the barrier to resolution. They know that the issues that have emotional overtones are often the ones that make it to court. Others are resolved by dispassionate negotiating. A skilled mediator may recognize that a joint session is the only way to manage emotions such as anger, frustration, or the feeling of being disrespected, etc.
The mediator’s challenge may be to persuade parties who don’t want to be in the same room with the other side, but want the case settled, that a joint session may very well be the key to resolving the dispute. To accomplish this the parties and counsel must trust that a mediator can control the process and create a safe environment for the reluctant parties to express themselves to each other. When this happens, the mediator increases the chance that the resolution won’t be one in which both parties are “equally unhappy” (a standard that some judges and attorneys think shows fairness), but one in which they both walk away feeling satisfied about the mediation process and the resolution. A properly managed joint session can be the missing component to a satisfactory settlement because parties will NOT need to go to court to have their day in court.
Edwards is a mediator and Duboe Seigle is a mediator and director of the Business Division of the National Conflict Resolution Center.