To be clear, there’s mediation and then there’s mediation. They are as different as night and day.  Wished we used different words for them, but we don’t.  But there is a clear distinction. Here it is:

One form of mediation is an alternative to trial. The other is an alternative to litigation.

Mediation as an Alternative to Trial

A lawsuit is designed to get to a trial where a judge imposes his or her decision on the parties.  Anyone who’s been through a trial knows how difficult it can be.  Some 30 years ago early legal pioneers saw in mediation a valuable way to avoid trials.  So now, long after the lawsuit is started, after most of the lawyering is done and after all the legal discovery is complete, right before trial, the case is mediated.

This form of mediation is the endgame to litigation and is an integral part of it. Because litigation is based on coercion – you can be dragged into court – it is naturally  adversarial.  So the mediation that ends litigation is also naturally adversarial.

This is the form of mediation most lawyers know and are familiar with. Now mediation is a very common and accepted way of ending lawsuits.

Mediation as an Alternative to Litigation

Mediation that is designed from the start to reach an agreed resolution – one that all the parties agree to – is a comprehensive dispute resolution process.  It’’s a complete replacement for litigation. This form of mediation is based on consensus – no one’s in it unless they voluntarily agree – so it is naturally collaborative.  Because it’s headed toward an solution where everyone agrees, the way they get there is also something they all agree on.

This is the form of mediation I practice.  It is not well-known among lawyers. There’s a reason for that.

The mediation I do has been developed largely outside the legal community. It was often practiced by people who saw the downsides to litigation and sometimes distrusted lawyers. So it developed as a complete and comprehensive alternative to litigation, often without the involvement of lawyers.  So lawyers are often not familiar with it, and if they are, they may be distrustful of it.

Most lawyers have not yet adopted mediation as a comprehensive dispute resolution process as an alternative to litigation.

Given that mediation was developed largely without lawyers, by people who often mistrusted them, and as an alternative to litigation, that’s not at all surprising.

But things are changing.

There is now emerging a new generation of legal pioneers. These lawyers want to do so much more for their clients than just sue people.  These lawyers want another tool in their lawyer’s toolbelt besides the just the litigation hammer.

These pioneers recognize that when people say they don’t want the cost and expense and pain of litigation, it doesn’t mean they don’t want legal advice. They see that they can provide dispute resolution beyond litigation.  They know that they can help their clients best by offering mediation as a comprehensive alternative to litigation.  These lawyers are representing clients and providing them with the legal advice they want without the lawsuit they don’t.

These are the lawyers I work with. These I are the lawyers I mediate with. If you’re one of these lawyers, or if you’d like to work with them, drop me a line or give me call.  Let’s talk about it.

There are limitations with that approach.  Here’s what I mean.

It’s certainly a common approach, at least for late-stage, litigation-context mediation. It’s borne of our adversarial experience. We’re thinking about trial, where the outcome will turn on what law is applied to what facts. So we’re thinking about hiring a mediator who’s also thinking about how the law will be applied to the facts.

A lot of lawyers think that a mediator who’s seen the same case a million times before will be realistic – which is defined, of course, as “seeing things the way I do.” They expect that the mediator, being reasonable and objective, will pressure the other side to see things more reasonably.

But here’s a secret mediator trick: when using that approach, we mediators never just pressure one side. Ever had a mediation where the mediator told you, “Gosh, Counselor, you’ve got a bang-up slam-dunk case!” Doesn’t happen much. If we’re looking for weaknesses and to shake confidence in expected outcomes, to loosen things up and create rooms for bottom-lines to move, we’ll do it wherever we find it. We’ll do it in the other room.  And we’ll do it in your room, too.

You may want that.  You may actually want someone to help you manage your client’s expectations. Someone to support you in your advice to them, help them think more reasonably about their case, and to encourage them into a settlement to avoid a trial.  If so, choosing a mediator who can put their case in a box for them could be just the thing.

There’s another limitation in choosing a mediator based on subject matter experience.

Consider that one of the ways you prepare your client is to tell them what a crap-shoot trial is. You explain that the judge is a generalist, not an expert.  You tel them the judge sees a different case everyday – many of them criminal – and doesn’t know the law as well as you and other experts in the field. So now you’re going to hire a mediator who, just like you, an expert in the field – maybe more so. How is that mediator going to somehow come up with a better prediction of a trial outcome? How is that expert-mediator supposed to predict what the unexpert-judge is going to do?

There’s a different way to choose a mediator. But it’s not for every case. And it’s not for every lawyer.

You may want for your client a mediation which is designed to reach agreement.  One that’s focused more on what it takes to get to that agreement and less on deciding who’s wrong and who’s right. A mediator with experience in consensus-based processes will be the better choice than one with a bunch of particular subject matter experience.

Concerned you’ll have to “educate” the mediator?  Maybe with some.  Not with me. In twenty years of litigating I rarely had the luxury of doing the same thing twice.  It was my job to learn a specific area of law better than the other lawyers who’d spent a lifetime at it, then beat them in court.  So lawyers aren’t going to be spending a bunch of time bringing me up to speed.

But because I’m not coming to a judgment, lawyers won’t live long enough to persuade me that they’re right.  They’re never going to get there.  It’s not going to happen. That’s because if I’ve come to the conclusion that one of you is right and one of you is wrong, put a fork in me – I’m done.

Think of it this way: there are already two very well-paid lawyers involved who know the law inside and out – and they can’t agree.  Why do you want to pay me for my opinion?  If what you really want for a mediator is a third legal evaluation, hoping it will back your side, I can certainly refer you to many.

If that’s what you’re looking for – a mediator who says he’s seen the exact same thing a million times before, so he’ll put you in a box with all the rest and tell you how it was in every other case he ever saw – there are scads of those.

It’s unlikely you’ll get a mediator with consensus-oriented process experience that way.  It’s unlikely because there just aren’t as many of us.  Might as well choose a mediator based on hair color.

If instead, you are looking for a mediator who’s going to see your situation with fresh eyes, and more to the point – help the other person see it with fresh eyes – give me a call.

It’s a very different approach, because it’s a very different process.  And now you get to make the choice.

How come?  What do we mean by “alternative?”  Why is it important for some to call it that?  Why is it important for some not to call it that?

Within the community of those who work in processes other than litigation, it’s now more commonly called just “dispute resolution.”  (Though some groups are avoid changing their acronyms by changing the “alternative” to “appropriate.”)  It is more often within the legal community that we hear it called “alternative” dispute resolution.

The concept of an alternative only makes sense within the context of being an alternative to something else.  Here, that referent is unstated, but implied and clear.  It’s pretty well understood that when we hear “alternative” we know what’s meant is “alternative to litigation.”

Litigation is the dominant paradigm in our society for approaching disputes.  It’s not the most used, of course, because it’s priced beyond the means of so many people.  But it is what most of us think of first when we think of conflict.

The term “Alternative Dispute Resolution” stands firmly in a narrative viewpoint centered on litigation, law and lawyers.

Yet to describe the full range of all the methods that human beings can use to approach their disputes as  “alternatives” to litigation seems to be missing something important.  It glosses over the essential characteristics of both litigation and its “alternatives.”

To get at those essential characteristics just stand the concept on its head.  I will at times provocatively describe litigation and the legal system as ADR — as the alternative to people working out their resolutions to disputes themselves.

Maybe, at this point, still, some 30+ years into the development of ADR, the easiest way we can describe what we do is that it is “not-litigation.”  But being fixed in a particular narrative vantage point limits our thinking.  It’s like calling the ocean “not-boat” or the vast reaches of the cosmos “not-earth.”

What is the essential nature of litigation?  What is the essential nature of each of the other dispute resolution approaches?