Fall 2007 - #2. Mediating for Money; Making Mediation Work in Civil Cases.

Author:Reviewed by Richard T. Cassidy, Esq.

Vermont Bar Journal


Fall 2007 - #2.

Mediating for Money; Making Mediation Work in Civil Cases



Mediating for Money; Making Mediation Work in Civil CasesReviewed by Richard T. Cassidy, Esq.Mediation has become commonplace in the American legal scene. That is true here in Vermont as well. Almost every family law, superior court, and environmental case brought in Vermont is mediated before considered ready for trial. So are most civil cases filed in United States District Court for the District of Vermont. Even criminal prosecutions may soon see the influence of mediation if a pilot project in criminal case mediations recently announced by the American Bar Association proves successful.

As mediation has grown, so has the discussion, literature, and training that surrounds it. Most mediation literature--and perhaps even the development of mediation itself--traces back to Fisher and Ury's seminal book, Getting to Yes: Negotiating Agreement Without Giving In (1983). Their work highlighted a very useful negotiation technique: the problem-solving model of negotiation. Mediators working within the model encourage parties to a dispute to move away from arguing about their positions and towards a mutual search for resolution based on recognition of the parties' needs and interests. For many cases, divorce mediation being a prime example, helping the parties to sort out their needs and interests is a base from which agreement becomes attainable.

Fisher and Ury's perception has changed dispute resolution and the practice of law. As profound as it is, the problem solving model has significant limitations. So does its analogue, so called "transformational mediation." As Andy Little points out in Making Money Talk, one of these limitations is that these models are simply not appropriate for many disputes. Negotiating the settlement of simple money cases--and personal injury claims and commercial disputes are usually simple money cases--is inherently a traditional, position-based bargaining process.

Lawyers and mediators who think that mediation plays no constructive role in making traditional positional negotiations work would benefit from reading Little's book. Skilled mediators need to come to the table with the right skills...

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