I guess I am doing what everyone else is doing these days; looking at the news through the lens of my training, expertise and experience. Thus, I am watching the issue of politics/economy vs. medicine play out as a dispute ripe for mediation.
On one side is the plaintiff whom we will call politics/economy. This plaintiff wants to get the economy rolling again and with it, everyone back to work. The plaintiff also wants to get re-elected and knows that a standstill economy will not assist in that endeavor.

On the other side is the defendant- medicine – who claims that the “sky is still falling” and if plaintiff gets her way, there will be catastrophic consequences with many, many more deaths and serious illnesses than if defendant “wins”. Defendant claims that we are far from out of the woods yet; in fact, we have not even reached the peak and so it is much too early to soften up or loosen up the strict stay at home and safe distancing requirements now in place.

And, here I am; in the middle as the mediator. Do I try to help the parties find a middle ground? Do I try to persuade that one party is right and the other is wrong?

Well, first I listen to each side, and then listen some more and more to each side so that I fully understand each party’s viewpoint. And in doing so, I attempt to build trust and rapport with each side. Trust is paramount here; if the parties do not trust the mediator, the mediation goes nowhere very quickly.

Once I fully understand each side’s viewpoint, I try to help the parties solve the problem through various means of “persuasion.”. Some may think that “persuasion” is what one person does TO another. In truth, it is what one does WITH others. (Frenkel, Douglas N. and Stark, James H., The Practice of Mediation (Wolters-Kluwer, 3d ed.2018 at 247).
Does the defendant- medicine- have the better argument here? One of the most persuasive tools available is data and evidence. And candor! What data and evidence does the defendant have to show that “getting back to normal” should be delayed? It has the medical data from China, Italy, Spain and the other countries that “caught” this pandemic long before the United States. The news is full of the medical experts explaining that based on the data from other countries, the pandemic in the United States has yet to peak, and so it is much too soon to get back to business as usual. And, it is speaking with candor and the utmost honesty.

But, the plaintiff counters by stating that if the economy is not “turned on” soon, the “cure” will be worse than the “problem” and the United States will revert into a recession or depression that it has not seen in decades if not centuries. As evidence, it points to the reports of its economic experts with their own data outlining how difficult it will be to bring the economy back if we all wait too long. But it also downplays defendant medicine by making statements that are at odds of those of medicine, based on “hunches” and “gut” and “feelings”. As a result, there may be less candor and honesty on plaintiff’s side than defendant’s. Who should the mediator trust to be telling the truth? Good question. Were this matter go to trial, is usually comes down to credibility: who appears to be telling the truth- plaintiff or defendant?

Do I emphasize to the parties that they should take advantage of this special opportunity presented by being in mediation and so they should “seize the day” or do I suggest that since they are committed to resolving this crisis, consistency demands that they create a resolution consistent with their commitment. And that they should do so quickly as time is running out; the deadline of “no return” may be fast approaching. Or, do I mention how other countries have dealt with this dichotomy and so they should be persuaded by the “social norms” of the rest of the world? (Id. at 247-261)

Do I invoke the “scarcity” principle by mentioning  that on March 24, 2020 the Chief Justice of the California Supreme Court ordered all civil trials postponed for 60 days which if and when this order is lifted, will cause an immense backlog. Getting to trial will be almost impossible!

If these persuasive tools do not work, do I then ask the parties to indulge in a “consider the opposite” by asking them to think about the weakness of their own positions and the strengths of their opponent’s or perhaps suggest that they engage in “role reversal” by stepping into the shoes of the other and looking at the situation from the other’s viewpoint. (Id.)

In my imaginary mediation, I would like to have a happy ending by thinking that one or more of these persuasive techniques will work and we will be saved from catastrophe. As is typical in mediations, the parties will find a middle ground and a compromise will be reached. But, in real life, it may not be so simple. A compromise would mean that some people return to work, but this would also mean that more people will become ill with Covid-19 as there is no indication that the peak has occurred. Sending people back to work and otherwise returning life to “normal” will only worsen the situation defendant medicine.

Is this one of those situations that is either/or; either the plaintiff wins, or the defendant wins and there is no middle ground? in short it is a zero-sum game negotiation? I do not know but if this dispute between politics/economy vs. medicine is not resolved soon, the results are too horrible to imagine.

…. Just something to think about.

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