Mediate or Litigate? Sometimes the Best Approach Isn’t Always Clear. Don’t Get Hammered.

Disputes between individuals are not always easily defined.  Often, there is a long history with multiple factors and nuances at play.  Emotions associated with the issues can be so overwhelming that the people involved can barely think straight, much less come up with a reasonable, logical solution to resolve the dispute.  All that is clear is that professional help is needed… and fast.  This is where many become confused about the exact type of help that is needed.  Should you hire a lawyer?  A mediator?  Both?

In cases like these, particularly in matters related to divorce and family law or to business partnership disputes, litigation might seem like the only option.  After all, how do you convince the other party to settle down and handle the disputes like an adult, if a calm, rational discussion seems to be as likely as stopping the waves of a Category 5 hurricane?  So even if you prefer to mediate, do circumstances force you to litigation?

Professionals with skills and experience in only one kind of dispute resolution may not be able to help you figure out the best approach, and therefore the right professional.  You’ve heard it before, and it’s true: To a workman whose only tool is a hammer, everything looks like a nail.  Similarly, when a litigator who is not also a mediator hears about your dispute, he or she has litigation skills and will see all the good reasons why you should litigate.  For the litigator, that’s the right answer.  Hammer, nail.  If you speak to a mediator with no experience as a litigator, that professional will see all the good reasons to use mediation for your dispute.  And for the mediator, that’s right, too.  Hammer, nail.  Those professionals can tell you — with every intention of helping as best they can — what for them seems best for you.

But they don’t have the overview and perspective, the range of choices, to help you figure out what for you is right in your current dispute.  That’s why it’s important to speak with an attorney who is fully experienced in both litigation and “alternative” dispute resolution, a professional who is capable of helping you in either approach; who can help you think through which way you’d like to head in resolving your dispute; and who can stick with you through any resolution.

Albert Einstein once said, “In the middle of every difficulty lies opportunity.”  The opportunity, although not always glaringly obvious, can usually be seen more easily by a third party who is non-partial and non-biased in the situation, and who has a varied range of skills to help you.  If there is an opportunity for an attorney to mediate a dispute rather than litigate it, a good mediator/attorney will readily see this, and probably very early after being consulted.  Even if you went in expecting to hire a lawyer, you might leave the meeting thinking that a mediator could be the better answer.  Indeed, it happens regularly that people coming to see me as a lawyer decide instead on mediation.  Sometimes, people seeking me out as a mediator come to realize their better bet is to use me as a lawyer.

There’s a saying in the dispute resolution field that an ounce of mediation can be worth a pound of arbitration and a ton of litigation.  Sometimes, it takes that whole ton of litigation to get a matter resolved.  That’s fine; there is lots of satisfaction in winning.  But other times, a different approach works just as well, costs a lot less, and has a much better impact on the futures of the parties and their relationships.  If mediation is possible, it’s worth a try; litigation can always be used as a last resort.  Choose wisely.

That Which Doesn’t Go Away: Why Reality Testing is Essential in Mediation

“Reality is that which, when you stop believing in it, doesn’t go away.” — Philip K. Dick, American writer.

In mediation, that which “doesn’t go away” is critically important for the long-term success of an agreement. That’s why the phrase “reality testing” is common, not just in mediation, but in all of Alternative Dispute Resolution. Why is it so important, especially when parties are trying to work out their own best resolutions to a particular conflict?

The Background and Reasons for Reality Testing in Mediation

Mediators generally try to get the parties past their “positions” so they can focus more productively on their “interests”. (The details of the differences are for another day, but to put it simply: if you want to rely only on “positions”, go see a judge who’ll tell you if you’re right about the law and if you can prove the facts. If you want to get to the heart of the matter and talk about what’s important to you and the other party, and what you need for a successful resolution, then you’re talking about “interests.” Welcome to mediation!)

The way many mediations progress, there comes a time when everyone starts brainstorming or spitballing possible solutions. That process encourages the parties to throw out as many unfiltered ideas as they can, no matter how crazy it sounds at first. From that universe of storms and balls, the parties can together examine all the good and nutty possibilities. That’s when you try to figure out what makes the most sense and what might work best for everyone.

Because the parties have been so open and creative in simply throwing out all the ideas they can think of, some of the ideas tend to be a little “out there.” Most of us don’t storm brains and spit balls all day long. Normally, we depend on our habits and patterns to get things done in a customary way. But in mediation, we know that the customary way has resulted in conflict, so we have to work through a different solution that may not be obvious at first.

Thus, more than we do in our daily lives, in mediation we have to think how our ideas and proposals might actually work in the cold, hard light of day, now and in the future. That’s reality testing. Two examples, one from divorce and one from a business dispute, can make the concept of reality testing, well, real.

A Divorce Example

A divorcing father, Jack, might say, “I demand completely equal custody of our 12 year-old, Billy, so everyone will know I’m an equal parent.” That might be his position. When pressed, Jack might say, “I’m upset that our marriage is failing and I want Billy to be just as comfortable with me as he is with his mother, Jill.” That might be an interest. In mediation, the parents will probably throw out many ideas about how to spend time with Billy. One of Jack’s spitballs might be that they split residential custody so that Billy is with one parent for one week and with the other parent the next week. Let’s suppose the parties start to close in on that idea as meeting both parents’ and Billy’s needs and interests. “OK. How will that work? Jack, your job has very irregular hours and you may be called out of town on short notice. Will you be able to arrange your own schedule so that you can be sure to be in town for a full week at a time, and not at the office at times of the day when Billy needs you?” That’s testing the reality of a proposal. The parties can see for themselves that a proposal might have to be modified or abandoned if, when they figure out how it might actually work, they realize it probably won’t.

A Business Dispute Example

Steve’s company was supposed to wholesale premium widgets to Sue’s retail store, but they weren’t a high enough quality to be premium. Steve’s company doesn’t have enough money to pay damages. During mediation, someone spitballs that maybe Steve’s company could immediately provide a large number of standard widgets and sell them to Sue’s company at a 30% discount off their normal wholesale cost, to make up for the past loss. “OK, maybe that meets everyone’s interests if it could work. But Steve, you need kryptonite to make widgets and there’s a world-wide shortage at the moment. Do you already have enough widgets in inventory, or do you have a special source of kryptonite, so you could fill that order?” Without testing how a deal might work in the real world, a resolution can look good on paper, but not get either party anywhere in practice.

Reckoning with “that which doesn’t go away” — reality testing — is essential in mediation, and not a bad idea any time.

What Roles Does “The Law” Play In Mediation?

The role that the law can and should play in mediation is one of the most widely discussed topics in the field of dispute resolution. It comes up in almost all mediations. It takes volumes to fully develop all the ideas, but the introduction we can make in a blog post should be a useful starting point for your own thinking.

By agreeing to mediate, the parties have chosen to try to resolve the dispute to their own mutual liking, rather than ceding to a judge the power to impose a decision about the outcome. In theory, if a judge decides a dispute, he does so by applying “the law”, as that judge understands the law to be. We all know that two lawyers often disagree about how “the law” would make their case come out in court. We know that trial-level judges’ decisions are often reversed on appeal. Just from recognizing those few facts, perhaps the best we can hope for from the court system is an approximate adjudication of how “the law” applies to the parties’ case.

If all we can depend on in litigation is an approximation of what some Platonic ideal of the law would say, then why do we litigate anything? For one thing, it beats fisticuffs. For another, it’s in our culture, if not our genes. We all want to think that we’re law-abiding citizens. I do what the law says I should, so if I’m in court, I should win. (If I made a mistake and know it, or if I cheated, then by going to court I’m either trying to delay or I’m hoping the courts make a mistake about the law in my case, as they have in so many others.)

There are other reasons why we rely on “the law”. By convention and the social compact, we trust that “the law” provides general rules of behavior and defines some aspects or relationships for most run-of-the-mill situations. Even if we don’t know the millions of details in statutes, case decisions, ordinances, regulations, etc., we have the sense that they’re all there for the public good. We each think we have a general sense of what they say, even without having specific training. We think that they’re dependable. We accept that they state the way we’re supposed to live, even when we’re not consciously thinking about what the law requires or permits. Suppose two parties enter into a contract to buy and sell gizmos. They don’t have to say in their contract what happens if the seller fails to ship, or if the buyer fails to pay. They know “the law” will provide an after-the-default answer about their rights and remedies.

Alright, how do those observations about “the law” apply to mediation? We digress for a moment to negotiation and dispute resolution theory. Negotiating parties should always understand what the likely outcomes would be if they can’t agree to a resolution. The range of those other likely outcomes makes up a huge part of the reality in which the parties are negotiating or resolving disputes. This concept was popularized by Roger Fisher and William Ury (of the Harvard Negotiation Project) in their ground-breaking book, Getting to Yes. The acronym is BATNA, the best alternative to a negotiated settlement. If both parties come out better with their proposed deal than they would under the best alternative likely outcome, then it makes sense for both of them to agree. That’s why knowing “the law” can be important in mediation. It’s vital for everyone in the discussion to have of sense of the range of what a judge would probably say the outcome should be. Knowing the BATNA — including “what the law would say” — can be crucial in deciding the shape and dimensions of a mediated deal.

But that doesn’t mean that the point of mediation is to come to the same result that a judge would arrive at in litigation. The parties of course might choose to do that (and save a great deal of time and expense by doing so.) But a great strength of mediation is that the parties don’t have to do what “the law” would do. (The parties shouldn’t enter into a deal that’s “against the law,” but that’s a conversation for another day.)

A few examples can make this clearer than a long discussion. Suppose Alice, a patent holder, claims that Barry infringed on his patent because he’s been incorporating Alice’s invention in some products that Barry sold over the last few years. “The law” might say that if Alice proves the infringement, then Barry would have to pay a zillion dollars in damages whether or not he know of that he was infringing any patents. But Barry, and eventually Alice, know that Barry priced the products he has already sold without building in any license fee for the use of Alice’s patents. Therefore, he just doesn’t have a zillion dollars lying around to pay her. All “the law” would permit a judge to do is enter a judgment for a zillion dollars — assuming Alice could prove everything at a very expensive trial and the judgment withstood years of very expensive appeals. That would put Barry out of business and he couldn’t pay it all to Alice anyway. But in mediation, there is a whole world of opportunity for resolving this dispute to the advantage of both Alice and Barry. For example, they could agree that for products sold in the future, Barry will pay Alice a license fee of 6% instead of a more reasonable 4%. Then Barry would know how to price his future products to include enough to cover a 6% fee to Alice. Barry could stay in business, making money for himself and extra money for Alice every time he sold a product. A judge couldn’t order that, but the parties can certainly agree to it in mediation.

Take an example from another realm I’m familiar with. New York has a statute that sets forth how child support is to be calculated. Generalizing, it says that child support has to be paid by the parent with whom the child spends less time, to the parent with whom the child spends more time. Calvin and Doris are getting divorced. Calvin makes much more money than Doris does, but for their family, it makes sense that their child, Eddy, spend more time with Calvin. A judge would likely not have the power in a divorce case to compel Calvin to pay Doris any child support. But in mediation, Calvin can say, “OK, I understand that the law doesn’t require me to pay any child support. But to me, it only makes sense that I help Doris by paying her some child support. I want Eddy to know that his mom can also afford to live in a home where he has his own room, and she has enough money to pay for things that Eddy needs.” Doris and Calvin can make that agreement, and even if a judge wouldn’t have the power on his own to order child support payments to Doris, he does have the power to approve their agreement to that effect. That judicial approval of the parties’ agreement becomes a judgment.

The patent lawyers for Alice and Barry told them what “the law” is. Each could see that the law would probably provide a remedy that did neither of them any good, and harmed Barry. For Alice and Barry, “the law” helped them understand their circumstances, and they elected to resolve their disputes in a completely different way. The divorce lawyers for Calvin and Doris told them about “the law” of child support. Knowing that law, the couple decided to do what made sense to the two of them, and what was best for Eddy, despite what “the law” would have said.

The beauty is that in mediation, the role of the law is important, but not because it dictates an outcome. It’s just one more thing the parties can consider and discuss. The parties can decide how much weight to give “the law,” how much sense it makes in their situation. The parties, with the help of the mediator, can use “the law” only in the way they want to, only in the way that makes sense to both of them, in resolving their disputes.

Mediation: Is Reframing Honest?

Let’s talk about two important features of mediation, and see if they’re compatible with each other. Mediators take both these things pretty seriously, so we better hope they work together. Spoiler alert: there’s a happy ending.

Honesty is a bedrock of all kinds of alternative dispute resolution. People are human and we sometimes prevaricate or shade or hide,… or flat-out lie. We can expect some of that when people are talking about something important to them or when they fear loss. But one of the underpinnings of mediation is to encourage both sides to be as honest as they can, with the other party, the mediator and themselves. Lasting agreements can’t be made unless everyone knows the same set of facts about the dispute, and everyone knows what’s truly important to both sides.

Reframing is a big concept in ADR, especially in mediation. The mediator restates what someone says in a different way. The idea is not just to make sure everyone understands what a party has just said. Reframing also allows the mediator to put the party’s idea into more palatable, productive wording. Perhaps it is less confrontational. Maybe it is more clear or distinct, or even succinct. Maybe the reframing is to make the party’s ideas more direct, more focused or more on-point. For example, a divorce mediator might reframe, “There is not a chance in hell I’m moving out of our house” into “There is a value to you in staying in your home.” In a commercial mediation, suppose the mediator hears Ms. Smith say, “You’re crazy if you think I would ever do business with that thief again.” The mediator might reframe that by saying to Ms. Smith, “You want assurances that all the agreements will be carried out and Ms. Jones has the ability to do what she says she’ll do.”

Are these two key elements of mediation — honesty and reframing — compatible with each other? Put more starkly, is reframing honest? If the mediator were trying to get a party to say something that was inconsistent with what the party genuinely thinks or feels, one might say that that is not honest. What’s important, though, is that reframing isn’t used to put untrue words in anyone’s mouth. It is used for quite the opposite purpose.

Reframing is explicitly designed to give parties a way of describing things, including the heart of their disputes, in ways that they themselves didn’t initially express them. As a result, sometimes when the mediator reframes something, a party will say, “Don’t put words in my mouth!” If that ended the conversation, then you can see that people might think that reframing is dishonest. But that’s not the end of the conversation. When a good mediator hears that, he or she knows that there has not been good communication and there is a lack of understanding at the table. “Don’t put words in my mouth” is a trigger to a deeper conversation in which the parties and the mediator work together exactly for the purpose of avoiding putting the wrong words in anyone’s mouth, or ears.

Look back at our examples. What about the divorcing spouse who wants to stay in the house? Reframing that idea into the house being an important value to that spouse is literally true. But it also allows the spouse to keep things in perspective. If selling the house would allow the spouse to buy something else that was of more value to him or her, the reframing gives him or her the chance to weigh the options without confusion. Ms. Smith’s animus toward Ms. Jones may be well-founded, but if there’s a sensible business deal to be made, reframing the personal dislike into a statement of the neutral business concepts that will make Ms. Smith comfortable, the two parties may be able to make a business deal that is profitable to both of them.

One should never reframe to a dishonest point. Reframing, at its best, is to confirm that the mediator (and the other party, assuming he’s listening) understands exactly what the speaker said and meant, but phrases it in a way that both parties find more useful toward the mutual goal of finding workable solutions. Proper reframing is honest, and it helps. Our happy ending.

Three Small Words With A Big Meaning In Dispute Resolution

Mediation, with all its nuances and complications, can be a tricky process.  After all, human nature is such that when we feel cornered, particularly by someone with whom we’ve shared an emotional or financial attachment, our first instinct is to go into “fight or flight” mode.  Fight-or-flight can be detrimental to arriving at a fair solution for both parties as tensions run high.  Words become loaded with insinuations, arguments over petty things are escalated, and each party feels as if he or she has been victimized.  Often, the increasingly tooth-and-nail fight leaves the real issues far behind and degenerates the “discussion” — if it can even be called that — into an urge for some sort of personal justice unrelated to either the situation or its resolution.

Is there any easy way to stop this in a mediation?  There certainly are proven formulas for avoiding that descent.  One is so simple and effective that it almost seems like magic.  Applying it begins with three simple words: “How can we….”  When one or all parties in mediation begin with those words, remarkable things can happen.  Pathways open up that weren’t seen before.  Fight or flight turns into Think and Link.  In less than a second, a defensive stance can turn into teamwork and cooperation.

These three words instantly, and quite naturally, convey a willingness and eagerness to cooperate and resolve the issue at hand.  You can’t attack when you start by saying, “How can we….”  And this is bi-directional.  You don’t feel as if you’re attacking, and the other person knows you’re not attacking.  On the contrary, you’re inviting.  And the thing you are inviting is cooperation and joint thinking about a problem you share with the other person.  There’s not a drop of “weakness” in those three words.

To illustrate the point, let me use this scenario as an example.  When Alice asks, “How can we…,” Zoe can respond in one of two broad ways.  She can take Alice at her word and start thinking about how to solve — or at least to reframe or reconsider — the problem that Alice articulated in the words after those three.  In other words, Zoe cooperates.  Or, Zoe might try to avoid responding to Alice’s words by rejecting, or at least parrying, Alice’s opening.  Zoe avoids.

Suppose Zoe chooses the former reaction, to cooperate.  I’d like to suggest that this is what happens far more often, both in life generally, and certainly when the parties have already agreed to mediate.  One reason is because the alternative, avoidance, is very hard to do without being obviously, blatantly rude.  If Zoe cooperates, then the two of them are no longer fighting with each other.  Now, they’re not focusing on the other person.  Rather, they’re addressing, together, a common enemy, which is the dispute they have.

But it’s true, sometimes people will avoid the “how can we…” invitation and not take up the other person’s offer.  What happens then?  At least two things.  One, Alice has unmistakable proof that Zoe is avoiding.  Two, Zoe has unmistakable proof that Zoe is avoiding, which is something Zoe might not have actually understood before.  Or, Zoe may have a better way to frame the question, which she will almost certainly propose to Alice as her response.  If Alice has been genuine in asking, “How can we…”, then Alice has to seriously consider what Zoe says.  Now Alice and Zoe are focused on defining the problem.  That’s not fighting with, or avoiding, the other person.  On the contrary, it’s teamwork in facing whatever differences they have.  In a surprising number of cases, parties are shocked when they finally realize that they hadn’t known what the fight was actually about, at least from the other person’s perspective.

When you ask, “How can we…,” you are literally asking for help in figuring something out.  You have a mediation partner, not a conflict foe.  You are demonstrating that you do not feel you must dictate a result to the other side.  You are showing that you are not only open to any good ideas, you want everyone to think of good ideas.  When Alice shows that openness and willingness, she is inviting Zoe to join her in openness and willingness.  Remember, the goal of mediation is for the parties to cooperatively figure out resolutions that work for both sides.  Using the words “how can we…” turns the stated intent to work together into something more than lip service.

I called the three words “almost magic,” but they’re not a simple incantation.  When you say those words, you have to mean them.  You have to be secure in your own thinking, be clear on the issues you know you need help with, and be truly open to thoughtful suggestions from others.  “Abracadabra,” they ain’t.

I’m indebted to some students at Cardozo Law School in New York City for the germ of this article.  I judged a Negotiation Competition there.  The competition was about negotiating a business deal, not mediation, but the same concept works in both situations.  At the conclusion, the judges were asked to make general comments and observations for the benefit of the students.  I had an opportunity to think broadly about what I had just watched in a series of mock negotiation sessions.  I realized that progress was most often made when one team explicitly asked for help in coming up with ideas.  When it was my turn to speak, it just came out as, “Probably the three most powerful words in negotiation are ‘how can we…’.  Think about how you empower the other side to resolve a mutual problem when you just ask for their help.  You’re saying, ‘Let’s do this together.’”  Not a bad start to end any conflict or dispute.

Don’t Settle. Mediate.

Some people wonder why they should mediate a dispute.  After all, they think, we’re smart enough, we know the issues.  We know how to negotiate.  Or, maybe: we’ve got lawyers, and certainly lawyers know how to negotiate.  Why is mediation any better than plain old negotiation and settlement?

Let’s start at the … end.  What do the parties want to have accomplished when they’re done?  In traditional bargaining and settlement, each party starts from the idea of maximizing his own position.  Each party wants the outcome to leave the two sides as far apart as possible.  The instinctive attitudes are that I’ll hope to offer less and less and you’ll hope to demand more and more.  Those mindsets naturally take you down a track where the rails separate as you move forward.  There would be a derailment very quickly, so both sides have to act counter to their own attitudes.  They have to “give up” something; they have to “compromise” so they can shrug their shoulders, swallow hard, bite the bullet and “settle” for something they really don’t like, but which they have to accept.  In traditional negotiation, each side feels constantly pressed to concede, to lose, to act against his or her own position.

In mediation, the hope at the beginning of the process is expressed as a very different end or goal.  The parties undertake mediation — with the help of the neutral third party, the mediator who has no stake in the outcome — in order to mutually find solutions to their disputes that satisfy both parties’ interests.  The parties, together, express and consider their own and the other side’s underlying needs and concerns.  The parties, together, try to state the core of the disputes they face.  Subtly, Party A’s problem is no longer Party B, and Party B’s problem is no longer Party A.  Instead, as the mediation unfolds, A and B together define one set of problems that they share.  Now, their creativity is not focused on beating each other up to get the best for themselves.  Rather, they focus, together, on finding solutions that actually address both their needs, workably resolving a particular set of problems that they have newly managed to articulate and corral.

If there’s that different attitude and goal-setting when the parties enter into mediation, how does that change things during the negotiations?  For one, it is no longer true that every win for me has to be a loss for you.  There are results that can benefit both of us.  There’s the famous story of two sisters in the kitchen, each wanting the one orange.  Half an orange isn’t enough for either, so the position of each sister is that she needs the whole thing.  They decide they have to “compromise” and “settle” and cut the orange in two, benefiting no one.  At the last moment, Kate explains that she needs all the pulp for her cake, while Sue explains that she needs all the zest for her sauce.  By expressing their interest in the different parts of the orange, rather than their position that they needed all of it, both sisters were both able to satisfy their goals and got everything they needed from the orange.

Mediation is increasing popular for divorce and family disputes, in New York City, New York State and around the United States.  Money can certainly be a source of great friction in divorce, but divorce is an obvious area where there can be varied, wide and deep sources of strain, conflict and disagreement.  On the other hand, the parties have a history with each other, some of it probably good.  They were, let’s hope, once in love and they put a lot of stake in their relationship.  They are likely to be dealing with each other into the future, certainly if they have children.  In traditional divorces, the negotiations are in the familiar mold: one wants to pay the least and the other wants to receive the most; each wants to come as close as possible to his or her own desired time with the kids, etc.  Any benefit to one comes at a cost to the other.  More diverging rails.

Mediation handles those disputes differently.  For example, if each spouse says that he or she wants as much time with the kids as possible, that’s their positions.  In standard “settlement negotiations,” the discussion tends to become horse-trading.  “OK,” says Mom.  “I’ll give you another week night, but in that case, I get to choose the summer camp.”  Much of that instinct comes from a deep human feeling that if I give something up, it’s only fair that I get something else back.  Often when we see that haggling, though, those parents have lost sight of what really matters to their kids and even what is truly important to him or her.  Good family and divorce lawyers can go some way in helping their clients stay real, but in the gunslinger negotiating room, spouses are conditioned to expect to fight.  In mediation, the spouses are conditioned to work together.  The kids’ and parents’ schedules get tacked to the wall and actually become relevant.  In talking about it, Mom may realize that if Dad has the kids one extra weeknight, it allows her more flexibility to do what she wants and needs to do.  The conversation about who chooses a camp can lead to the discussion of what they want their kids’ summers to be like and how much they can afford to spend on summer activities.  And so on.

Anyone want some bullet points on Settlement vs. Mediation?  Here you go:

Settlement is to Mediation as…:

Win and lose is to Solve;

Positions are to Interests;

Fight is to Collaborate;

“My Problem is you” is to “Our problem is out there”;

Zero-sum is to Create;

“I” is to “We”.