New Hampshire Bar Journal
2003 December, 10.
Mediation of Civil Cases: Is It Only About Money?
New Hampshire Bar Journal December 2003, Volume 44, Number 4 Mediation of Civil Cases: Is It Only About Money? By Attorney Peter Y. Wolfe INTRODUCTION
How often have you heard the mediator say, "This case is only about money? The only relief the court can order is money damages." This view of civil mediation is prevalent among attorneys and has emerged since mediation has become institutionalized in the courts.(EN1) The courts mandating civil mediation and only using attorneys as mediators has hastened this trend.(EN2) In many instances what now occurs at civil mediation is a discussion of evidentiary issues and possible outcomes at trial.(EN3) Mediation, the least formal of the Alternative Dispute Resolution (ADR) processes, now reflects features that are normally associated with the adjudicatory process.(EN4)
These trends are taking mediation further away from its original goals and objectives. Mediation as part of the assortment of processes called Alternative Dispute Resolution (ADR) was supposed to be an alternative to the legal process.(EN5) This original view was premised on the parties actively participating and communicating with each other, helped by the assistance of the mediator to find creative ways to resolve their dispute.(EN6) The central quality of mediation was supposed to be its ability to reorient the parties toward each other by helping them achieve a new and shared view of the problem.(EN7)
This approach was demonstrated during a mediation between a bank and computer consulting firm in the late 1980's.(EN8) The dispute centered on a bill the consulting firm submitted to the bank for costs associated with attending seminars and meetings related to the installation of software for the bank. This occurred during the first year of a five-year contract worth millions of dollars. The case was referred to mediation. Instead of focusing on who would prevail at trial, the mediator focused the parties' attention on understanding their relationship with each other. Ultimately, an agreement was reached by the bank and consulting firm creating a joint venture to market the computer services to financial institutions with seed money coming from the disputed amount and with an employee loaned by the bank to help enable the venture.
Now, "court connected mediation of non-family civil cases is developing an uncanny resemblance to the judicially hosted settlement conference."(EN9) Mediators generally ask counsel about the strengths and weakness of their cases; how they expect to get a vital piece of information into evidence; and what they expect a jury to do. The expected legal outcome becomes the central focus of the mediation, rather than the parties' relationship with each other.
Some of this is logical and to be expected with the presence of lawyers acting as advocates and serving as mediators.(EN10) As attorneys are ordered to participate at mediation with their clients, they bring with them their standard philosophical map of dispute resolution, which focuses on rights, positions, and the likely court outcome. They limit their client participation in order to protect them from perceived unnecessary discovery. They use the skills and tactics that they have honed in prior experiences with traditional judicial settlement conferences.(EN11) As more and more attorneys and retired judges are attracted to mediation as a remunerative activity, they bring to the role of mediator the skills and knowledge that served them well in their careers as advocates in a court setting, as well as certain assumptions about the role of a quasi-judicial host.(EN12)
Given this background, it is understandable that the view of attorney mediators is limited to monetary damages. "In litigation, money is the substitute, i.e., remedy [for every wrong]. Money is the only language trial lawyers have."(EN13) The concept of mediation as just another judicial forum for settlement of civil cases fosters the view that the only remedy is monetary damages.
Is that all there is to mediation? Can mediation offer something more than what is found at a judicial settlement conference? This article explores these questions by looking at what parties want from mediation. To accomplish this, it will rely on procedural justice studies that that analyze how disputants view the different processes and then examine what parties want from a dispute resolution process. This analysis will explain why disputants want more than just money to resolve their cases.
Next, the article will address what non-monetary solutions might be available to satisfy parties' interests and needs. It will examine the tension between "value claiming," the focus on the distribution of money, and "value creation," the search for non-monetary, creative solutions that meet the underlying interests and needs. "Some commentators have suggested that settlement options naturally become non-monetary and creative in more complex cases."(EN14) Indeed, if disputants expand rather than restrict the issues under discussion, such expansion will often lead to a creative broadening of the resources available and the exchanges needed for settlement.(EN15) Attorneys and mediators who introduce integrative solutions, i.e., "value creation," to what has been viewed as a distributive or zero-sum dispute will expand possible settlements beyond the exchange of money.
WHAT PARTIES WANT FROM MEDIATION
Two different mediations illustrate the importance of understanding what parties want from mediation. Leonard Riskin conducted both of these mediations on the same day.(EN16) The first was a personal injury case. At the mediation, the plaintiff was represented by counsel and the defendant, who was not present, was represented by counsel and the insurance adjuster. The case involved a motor vehicle accident in which the plaintiff suffered serious injuries. In addition to being hurt, the plaintiff was angry and upset because she felt that the insurance adjuster had implied that her injuries were not serious. During the initial joint session, in a highly charged atmosphere, both the plaintiff and the insurance adjuster were able to communicate their perspectives to each other.
The second mediation arose out of a claim of police brutality in connection with an allegedly invalid arrest. In this mediation, only the attorneys were present. With the help of the mediator, counsel quickly defined the problem. The session dealt with a discussion of the legal issues, the facts, and how a judge or jury would rule on them. This mediation was extremely cordial, but the case did not settle.
During the first mediation, the mediator relinquished some control and let the parties determine where their conversations would lead. This made the mediator anxious and called into question his professional expertise.(EN17) The second mediation provided a more comfortable setting for the mediator.(EN18) Of these two cases only the first one settled. In assessing both mediations, the differences are readily apparent. At the first mediation, the plaintiff was present and was allowed to participate. In a post-mediation follow-up, the plaintiff made it clear that her opportunity to express her feelings was essential to settlement.(EN19) At the second mediation, only counsel were present, which didn't allow for the personal exchanges that had facilitated the settlement of the first case.
Lawyers evaluate litigation options differently than their clients. Their evaluations are more likely to be consistent with the expected value of the case based on jury verdicts and past settlements.(EN20) Research has demonstrated that both lawyers and claims adjusters tend to share and apply a rational, economically grounded analysis to determine whether to settle or not. This analytical orientation facilitates distributive negotiations and rational decision-making, which explains why mediation is viewed as only assisted negotiation.(EN21)
Litigants, on the other hand, are not looking for a process that provides bargaining assistance or efficiency.(EN22) Instead, they want a process that they consider fair, a process where they can obtain vindication and express their feelings, and a process that satisfies a sense of entitlement regarding their access to the use of the courts.(EN23) Disputants are more...