Once Upon a Mediation: The Role of Narrative in ADR, 0419 COBJ, Vol. 48, No. 4 Pg. 22
| Author | BY C. ADAM FOSTER |
| Position | Vol. 48, 4 [Page 22] |
ALTERNATIVE DISPUTE RESOLUTION
BY C. ADAM FOSTER
This article considers the practice of narrative mediation as a tool for helping parties interact more productively both during and after mediation.
Narrative plays an important role in forming personal identity and world view. Narrative also helps explain why a party might reject a settlement that seems economically favorable if it does not comport with the party's subjective view of fairness. Accordingly, narrative is a useful tool in understanding and resolving legal disputes.
The practice of narrative mediation is particularly useful in addressing conflicts where the parties will continue to have a relationship with each other in the future. A growing body of literature defines narrative mediation as its own unique approach to alternative dispute resolution (ADR), but narrative techniques can be used in a wide variety of ADR settings, including traditional settlement conferences.
Narrative Matters
We all learn from events in our lives. Our need for coherence and identity causes each of us to weave those events into an ongoing story about life and the people and events that affect our lives. In so doing, we develop a continuing narrative about ourselves and our relationships with others, which informs our choices moving forward. We create multiple narratives in different contexts that inform how we see ourselves in various social roles, such as professionals, spouses, parents, and friends. These individual narratives interrelate with larger social narratives involving class, race, gender, sexual orientation, religion, and many other aspects of our identities. Whether on a conscious or subconscious level, our narratives reaffirm our values and identity: "The stories that one constructs fit into a wider web of stories relating to other stories created by the same individual, to stories created by members of one's social network, and even to cultural stories on a societal level."1 This notion of interrelated individual narratives and larger scale social discourse has been adopted into the practice of narrative mediation.
Narrative mediation is premised on the idea that we shape our lives through our narratives. The narrative mediator seeks to help the parties author stories that highlight strengths and reconcile conflicts in their relationships. This helps people to be more cooperative and respectful and thus resolve their conflicts more effectively.
Narrative mediation exploits the potential to address conflict by disrupting and restructuring the parties' narratives. It is based on the hypothesis that the closer the relationship the parties will have following mediation, the more important it will be for them to establish key elements of a joint narrative. There are specific questions that mediators can use to enable parties to articulate their existing conflict narrative and forge a new narrative that will permit them to interact in a more productive fashion in the future.
The Importance of Storytelling in Legal Disputes
The statement of facts is arguably the most important part of any legal brief because it is the narrative that gives life to the legal issues. Citation to legal authorities is meaningless unless the decision maker understands the specific factual context of the case. Whether in a statement of facts, an opening statement, or a mediation conference, a properly crafted narrative creates moral tension, suggests a proper result, and makes the decision maker care about the outcome. A compelling narrative provides integrity by fitting the facts together in a logical fashion that supports the party's message.
Judges, juries, and arbitrators generally want to achieve a fair outcome. To guide them to the desired outcome, attorneys must recognize that the decision maker is different in a bench trial, a jury trial, an arbitration, and a mediation, and attorneys should tailor their narrative to the appropriate audience. A large part of this litigation strategy focuses on advancing the client's narrative and suppressing or disrupting the opposing party's narrative. Moreover, each individual involved in the proceeding—the parties, attorneys, mediator, arbitrator, judge, and jury—is trying to make sense of two related, but distinct, narratives: a narrative regarding the facts of the case and a desirable outcome, and a meta-narrative involving who they are as a person and how the case fits in with their life story.
In mediation, it is critical that the parties tell their narratives. Parties want to achieve a favorable outcome but also want to be heard and validated in the process, so allowing them to tell their stories helps accomplish a good settlement that will be adhered to. A party who achieves a favorable financial outcome but doesn't feel heard may walk away dissatisfied and try to undermine the settlement when the opportunity arises.
Common sense dictates that it is usually more important for parties to agree on certain elements of a joint narrative if they will be in a continuing relationship (e.g., in a workplace or parenting time dispute) versus a one-off transaction (e.g., a tort settlement for money damages). But it is often necessary to establish legal and factual stipulations to settle any type of dispute. Litigation will result in a judgment, but may not further agreement on a joint narrative.
The Role of Self-Serving Bias
The standard economic model of legal disputes posits that settlement occurs when there exists a positively valued settlement zone—a range of transfer amounts from the defendant to plaintiff that leave both parties better off than they would be if they went to trial. The location of the settlement zone depends on three factors: the parties' probability distributions of award amounts, die litigation costs they face, and their risk preferences.[2]
In an economic model of legal dispute...
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