I just obtained a teaching position as a Lecturer of Law (aka adjunct professor) at University of Southern California Gould School of Law teaching the mediation ethics portion of an ADR Ethics class.
One of the issues we will be discussing is the conflicting goals of the participants (that is, the parties, their attorneys, and the mediator) at a mediation. While I initially did not give much thought to the issue, I have reconsidered because the issue came up once again during a meeting of mediators that I attended. I realized that the issue is much more crucial and compelling than I initially surmised.
For example, take the role of a party. What are her goals? If it is the plaintiff – Is it to settle the case? Is it to “win” at mediation? Is it to prove a point? Is it to uphold a principle? Is it to avoid trial? Is it simply to get the other party “to pay up” or is it to preserve a relationship? To figure a way forward? (And, if there are two or more plaintiffs- will their respective goals coincide or conflict?)
These also apply to an individual defendant (or group of defendants) as well as a corporate defendant. But in addition, for the corporate defendant- is it to stay within budget? Is it purely an economical decision? Or a business one? Is it to prevent a precedent from being set for potential future lawsuits? Is the corporate defendant’s paramount concern about what the auditors will say? Is it to do a good job so that the corporate representative will get the bonus or long sought for promotion? Is it to keep the matter from being made public? Perhaps to avoid copycat lawsuits? Or, having its goodwill if not stock value decline in the market place?
For the plaintiff’s attorney- is it about ego? Is it about “winning”? Is it about getting a “just” result or one that is feasible? Is it about getting paid? Is about keeping the case going a bit longer so that more fees are generated? Is it about simply complying with a court’s order to attend mediation, (or, as is often said, to simply “check off a box” in the many steps towards trial). Is it about obtaining some “free discovery”? Is it about “testing the waters” to see if a settlement is even possible? Is it about appeasing a client or alternatively, getting rid of a client that the attorney no longer wants to represent? Is it about building a reputation? And thus, obtain more business from this and other clients? Or, if it is a matter where counsel has multiple cases with the same opposing counsel, is it about trying to preserve that professional relationship for future dealings? Or, just the opposite- counsel hate each other so much that the personal animosity colors their representation? Or, last but not the least, is it about representing the client to the best of the attorney’s ability, putting the client’s interests above the attorney’s even if it means that the attorney gets paid less in fees? Or, even if it means that the attorney does not get a “win” to notch on her belt?
Many of the above questions apply to defense counsel. Is it about ego? Or “winning”? trying to impress a client, especially if it is a corporate one with lots of business? Is it simply a means to obtain “free discovery” or to “test the waters” to see if plaintiff want to settle and if so, how low will plaintiff go towards reaching a resolution? Is it about getting a just result or one that is simply practical given the circumstances of the case? If a corporate counsel is involved, is it about staying within budget? Or, is it simply going through the motions because the court ordered it and it is another box to check off in the litigation march towards trial? If it is the same plaintiff’s counsel as in other matters, is it about preserving that relationship for the future? Or, sticking it to opposing counsel because of a prior case or just because….?
For the mediator- the issues are equally conflicting. Is it to settle the case? At all costs? Or, to ensure that the parties/attorneys like the mediator so that they will use her again, (i.e., To build her business). Is it to build a relationship of trust and confidence with the parties no matter what? Is it simply to be a messenger or conduit for the parties? Or to do more than simply facilitate? Is it to help the court by getting the case off the docket? Or, simply a way to make a living?
And even in terms of the timing of the mediation, the goals can differ. One party may want it soon after complaint was filed to avoid running up fees and costs, while the other party wants to delay the mediation knowing that the longer it takes, the other side will be incurring fees and costs to perhaps a point of diminishing returns and so will be willing to settle for much less on the eve of trial than within the first few months after the complaint was filed.
…. And with these conflicting goals, the parties come to mediation expecting the mediator to “do her magic”. We can truly be “magicians” only once and after we figure out the conflicting goals of all concerned and weave them into a compatible narrative that sort of makes sense to everyone and that everyone can live with. Excuse me for a moment while I fetch my “magic” wand!
…. Just something to think about.
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