Every dispute is a story, and every story must be told. In the Tuesday, May 22, 2007 Science Times section of the New York Times, Benedict Carey discusses research on how and why each of us have the personalities and traits that we do have and that we do not have. In his article, “This is Your Life (and How You Tell It)”, Mr. Carey focuses on how researchers are now only beginning to focus on the “first person explanation – the life story that people themselves tell about who they are and why.” (Id.) The personal narrative is beginning to gain credence in explaining why people behave as they do and how they view themselves not only in the past but also in the future:

Researchers have found that the human brain has a natural affinity for narrative construction. People tend to remember facts more accurately if they encounter them in a story rather than in a list, . . . and they rate legal arguments as more convincing when built into narrative tales rather than on legal precedent.

 What researchers have discovered is that it is also important in how each person tells her story – in the first person or third person. Those that tell their story of past events in the third person allow distance to be put between themselves and the events. More significantly, third party narratives allow the storyteller to focus on the events and why the storyteller felt the way she did about the events. Thus, while the emotional content of the memory is still felt, its sting is blunted by the distancing. Such distancing also gives the storyteller more freedom or permission to change her behavior for the future. That is, “projecting future actions in the third person may also affect what people later do. . . .” (Id.)

 In sum, “seeing oneself as acting in a movie or a play is not merely fantasy or indulgence: it is fundamental to how people work out who it is they are and how they may become.” (Id.)

 What does this has to do with mediation: quite a lot. By allowing the parties to tell their stories, the mediator allows them to work things out in their mind. By encouraging them to tell the story in the third person, the mediator permits them to remove themselves as a participant in the dispute and become a witness. As a witness, they can then focus more objectively on the events, why they acted as they did and give themselves permission to change their ways. The parties can permit themselves a means to resolve the dispute and to create a plan of action by which to move forward.

 In sum, wittingly or unwittingly, the parties have engaged in a process known as narrative mediation. As explained on the Conflict Resolution Information Source website, narrative mediation focuses on the parties’ stories rather than on the traditional problem-solving, interest based model of resolving disputes. “A narrative mediation approach encourages the conflicting parties to reach understanding and resolution through a deep understanding of the shared personal and cultural narratives underlying the conflict.” (Id.) Focusing on the story that each person has to tell, narrative mediation seeks to resolve the conflict by having each party externalize their story (i.e. use a third person narrative) and then focus on how they would like their story to end. That is, creating an alternative story or re-telling the story in a different way to produce a positive outcome. In very literal terms, the person is separated from the problem and the problem is the problem.
 
 Narrative mediation emerged and developed from narrative therapy by Michael White and David Epston and it has been used for many years with success. Thus, it is not surprising that the research referenced in the New York Times article is meeting with success. Every person does, indeed, live her life through a story that must be told.   

 Predictably, my blog draws on my experience as a mediator. Once again, over the last few weeks, I have conducted more than one mediation where time was not taken prior to the mediation to explain to a party what mediation is all about: its process and what to expect. I learn this truth when a party asks me to explain why she is sitting in my office, what is “mediation”; are there any “rules”; and if so, what are they et cetera. Sometimes a party refers to me as a “judge.”

 In response, I take the extra time to explain what is mediation and what it is not. I explain the key concepts of confidentiality, voluntariness and self-determination. I explain the processes involved, the difference between joint and separate sessions and that upon reaching a resolution, a settlement agreement will be drafted and executed. As importantly, I explain that in our technological world, mediation is an anachronism. It takes time: settlements do not occur in a nanosecond or with a click of a mouse.

 I often find that these mediations do not go as well. Because a party has come to mediation not knowing what to expect, she has not given much thought to the various issues in the matter and how she would like to see them resolved. She not really thought about settlement. As a result, she may not be fully prepared to settle then and there. Often, additional factual information is needed. Consequently, a resolution is not reached in a matter that otherwise should have been resolved.

 Time and time again, each of us have had to sit down and mentally think about how to approach something: we plan ahead. We play a mental game of chess. This visualizing needs to occur with mediation. Prior to the actual mediation, each party should learn what mediation is about, what to expect and should think about the issues and the different ways she would best like to see the issues and the whole matter resolved.
 By understanding the concept of “mediation” beforehand and being fully prepared for it, a party’s chances for success will be much greater.
 . . . Just something to think about.    

 We have all heard that an attorney should zealously represent her clients. Rule 1.3 of the Model Rules of Professional Conduct provides that “A lawyer shall act with reasonable diligence and promptness in representing a client.” The comment states, in part, that “A lawyer must also act with commitment and dedication to the interests of the client and zeal in advocacy upon the client’s behalf.”
 
Several months ago, I mediated a dispute involving an assault and battery between two teenagers. The teenager who was assaulted (plaintiff) received a concussion and was beaten up pretty badly. But the plaintiff recovered completely – no lasting or devastating injuries – and is finishing school with a view of going on to college. The teenager who did the assaulting (defendant) was arrested and went through the juvenile justice system and has been ordered to reimburse plaintiff for the medical expenses incurred. I was told that up until this incident, the defendant was a model teenager, taking extra difficult courses in school and intending to go to college.

 The plaintiff sued not only the individual defendant but also the corporate entity on whose premises this assault and battery had occurred. At the mediation, the plaintiff’s attorney was adamant that his client was entitled to a mid-six figure settlement from both the individual defendant and the corporate defendant. He would not listen to the notions that the real value in this case was that plaintiff had fully recovered and had not had a young person’s dreams dashed by a 30 second incident, and, that when viewed in this light, it was a minimal value case that should be settled. When the defense counsel raised the notion of whether two teenagers – plaintiff and defendant – should be subjected to the trauma of trial and undergo the judgmental process of a jury, the plaintiff’s attorney dismissed such notions claiming his teenage client could “handle it” and was in fact, “looking forward” to it. When counsel for the individual defendant explained that his client wanted to reimburse plaintiff for the medical expenses but simply did not have that amount of money and had no assets, plaintiff’s counsel would not acknowledge this reality. When the individual defendant offered what little amount of money he could honestly and earnestly be scrap together, plaintiff’s counsel dismissed the offer, almost out of hand. Instead, in his view, plaintiff’s counsel would obtain a judgment against the teenaged defendant that could be renewed again and again until the defendant completed college, started a career and thus had money with which to pay the judgment. The fact that this judgment would haunt a young person – who acted wrongly for 30 seconds but who, I was told, was otherwise a good kid – for the rest of life was of no concern to plaintiff’s attorney. He wanted justice and either the defendant paid the mid-six figure demanded in settlement – or a jury would award it. He also would not acknowledge that a judge and/or jury might see things differently.  

 With respect to the corporate defendant, plaintiff’s attorney was absolutely convinced it was somehow responsible for all of this, and should be held to pay for it. Again, plaintiff’s counsel would not consider defense counsel’s counter arguments or even acknowledge that a possibility exists that the corporate defendant may not be liable. . . that a court might just determine that it had acted “reasonably” under the circumstances. Instead, plaintiff’s counsel was adamant in his demand for a mid-six-figure settlement.

Well. . . the other day, the motion for summary judgment filed by the corporate defendant was granted. The “deep pocket” is out of the case. . . for now (will plaintiff appeal?) All plaintiff is left with is the individual defendant who has already offered to pay what little money can be scrapped together.  

 How will this case ultimately turn out? Probably not as well as it could have through a settlement at mediation.
 I guess the morale of this tale is to never “be blinded by the light”. While every attorney has the highest duty to represent her client to the utmost, at the same time, she must acknowledge that contrary view points do exist and nothing but nothing is a “slam dunk.”  Listen to the mediator.  When a mediator discusses other or contrary   points of view with a party and/or her counsel, there is most likely a “method to her madness”: it is not simply idle chatter.
 . . . Just something to think about.