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.

Isn’t this how many of us in dispute resolution and mediation describe our work?  Isn’t it how many skeptics describe it?

Yet is this real?  Is this the way it is? Language forms our thinking, and this language is amorphous, disassociative, ephemeral.  Is this how we view our work?  How others see it?  How our clients see it?

What if we used different language?

Hard questions.  Difficult conversations.  Clear-eyed assessments.  Facing the situation square-shouldered.  Unvarnished appraisals.  The geometry of conflict. The acute and sharp angles of positions, the flinty sparks of strong emotion.  Clients grounded in the deepest bedrock of true interests.  The mass and weight of what’s truly most important.  Real-world solutions that are enforceable, durable and sustainable — lasting and strong.

I very much appreciate having left behind the gladiatorial language of litigation.  Many come to this work because they had been wounded themselves by the sharp blades of adversarial conflict. The language of warfare is best left to lie where we left it.  But must we avoid language conveying the strength, the solidity of what we do?

If we have a hope of helping our clients transit through the liminel space of conflict, to transcend it, they can’t lift themselves up from the boggy, squishy ground of avoidance. They can’t move beyond it if we encourage them to deny they’re in a bad place. If our language is as ethereal as a vapor, it provides no stable ground for traction, no fulcrum to lever movement, no purchase to get a grip, no hard pier to shove-off from and to launch in their new direction.

We focus on what’s most important.  And there is nothing more realistic and pragmatic than focusing on what’s most important.  It’s hard work.

What we do has weight and mass, substance and strength.  Tell each other.  Tell the skeptics. Tell your clients.  Speak of it.

As a mediator, there’s a lot of powerful symbolism in just holding the Beer Summit.  It shows that talking about our differences has value.

The press was not allowed in for more than a few seconds to take some pics and see that it was actually happening.  But even that little bit allowed us to see that there’s more to be learned there.  Take a look:

First Lesson.  Beforehand we’d been hearing about the three who would be there:  Prof. Gates, Sergeant Crowley, and President Obama.  And almost as much about what they’d be drinking (Professor Gates with the Sam Adams is my man).

But who’s this fourth person?  Vice President Biden.  You might think Joe heard there was a party and just couldn’t pass up a beer — but you’d be wrong — he had a non-alcoholic Buckler.  Doesn’t do alcohol.

So why is he there?  There’s one good reason that’s so good — good enough all by itself to be the only reason: to balance the ethnicities at the table.  Don’t underestimate it — that could be huge for Sgt. Crowley.

And here’s another reason that’s just as good: to balance the ages at the table. That could be just as huge for Professor Gates.

And yet another reason: to balance the President himself.  He had made an early statement of the situation, expressing a judgment of it, several days before issuing the Beer Summit invitations.

Looking for balance in the room is something we mediators are always looking at, and if you’ve got the option of having a co-mediator you’ve got a lot more options.

Next lesson to learn: look at the photo.  Both POTUS and VPOTUS took off their coats and rolled-up their sleeves.  Now you know a sneaky secret mediator trick — they’re modeling a constructive attitude that now we’re dropping projected images and getting down to work.

If all that came out of the Beer Summit were press releases all around with the standard diplomatic “we had a frank exchange of views,” it would be enough.  But just these two indications show it was convened with a lot more intention and forethought than just that.  From the mediator’s corner, I say, “masterfully done.”

Some people hold the preconceived notion that their approach – private or joint – is always better, all the time, for all people and in all cases.

These preconceived notions come from the real experience mediators and attorneys have had. Litigators and litigation-context mediators know that there are things that they can do in private meetings that they can’t do in joint meetings. Other mediators know that there are things that they can do in joint meetings that they can’t do in private meetings.

Some have had bad experiences with joint sessions. Some have had bad experiences with private sessions.

Why is that?

These different approaches have been used in two separate contexts, of course. Private meetings tend to be used more in litigation-context mediations. Joint meetings tend to be used more in mediations outside litigation. In each context, the professionals have been better skilled at the approach they use more, and it proves more helpful. And in each context, the other approach has not been used as often, the professionals aren’t very good at it, and the few times they try it, things don’t go so well.

Not all mediators and lawyers have the skill-set to work effectively in private meetings.  And not all mediators and lawyers have the skill-set to work effectively in joint meetings.

So it’s no wonder some are better with one approach more than the other, they get better results with it, they have their preferences for it over the other. It’s not surprising that these preferences turn into pre-conceived notions about what’s best, or even into beliefs about what is right and what is wrong.

I encourage mediators and lawyers to reflect on their experiences with joint/private meetings and what pre-conceived notions they have formed about them. And to learn more about and gain some skill in using the approach they’re less familiar with. Then they’ll be in a better position to say – in each particular situation, with that particular mix of people and the professionals’ skill-sets – which approach might be the one to use.