Working for Justice in the Mediation Zone
MEDIATION 'MAGIC' HAPPENS WHEN NEUTRALS REVITALIZE JUSTICE ISSUES
By Victoria Pynchon
There comes a point in every mediation when the attorneys need help in understanding their clients and the clients need to be reminded of the limitations the legal process imposes on everyone's efforts to resolve the conflict at hand. A mediator knows this time has come when the parties begin to complain that their counsel is "forgetting" to emphasize their most important losses; "editing" their stories or refusing to let them speak their minds. Sometimes it's the attorneys who alert the settlement officer to the lawyer-client communication gap.
"My client's expectations of success are unrealistic," they'll say, or, throwing up their hands, they'll exclaim, "She just doesn't understand. No matter how carefully I try to explain the law's limitations, she just won't accept them."
As litigators, we do forget that what we're doing for our clients - transforming their narratives of injustice into actionable claims - is as mysterious to the parties as quantum physics is to most of us.
On those occasions when it becomes clear that the parties need to re-visit their justice issues along with the limitations of the legal system, this is what I usually say:
"The dispute you're having exists in the world of injustice.
"Picture the earth.
"Now picture a grain of rice somewhere on the earth.
"The grain of rice represents the injustices the law will remedy. The earth represents the injustices the law will not."
Then I sketch a round green "earth" surrounding a small yellow square.
"It feels as if your attorney is 'editing' or 'shaping' or 'spinning' your story of injustice," I continue, "because she is. This tiny yellow area represents the facts necessary to obtain relief in court (damages or an injunction, for instance) or to defeat your opponent's claim (failure to satisfy a condition precedent; inability to state a claim the law will recognize and the like).
"The entire dispute - everything that happened inside the green circle - is what you, the client, want to resolve. Unfortunately, what you want would often require the disclosure of facts that would be harmful to your case. That's why your attorney doesn't let you talk in the presence of the 'other side' and asks you not to discuss the dispute with your opponent again. She's protecting you from revealing something in the green area that's bad for proving your case in the yellow square."
"Here's the good news. Mediators work in the green area - where injustices the law will not remedy reside. That's why we're here today in this conference room negotiating a 'deal.' As my friend the mediator Richard Millen says, 'People don't have legal problems. Only lawyers have legal problems. People have people problems.' But people don't seek out lawyers to help them resolve those problems unless they're accompanied by a justice issue.
"If you were only seeking money - as your opponent believes - you'd buy a lottery ticket or borrow the sums you need to open that restaurant you told me about. When you sought legal advice, you were asking your lawyer to "monetize" injustice. And that's what he's done. He calculated the value of your rights and called them remedies. He assessed the worth of your injuries or traced the transfer of your monies by your opponent to restore the benefit of their investment to you. He'll even ask the jury to punish the opposition by asking them to look at its net worth and then award enough damages to make it 'hurt.'"
On those rare occasions when mediation feels like "magic," its almost always because the mediator has helped the parties and their counsel re-vivify the justice issues that the legal dispute has flattened for the purpose of precedent, consistency and predictability. We're successful in this task when we allow the parties to restore to the conflict the life, texture, nuance and gray tones that "the law" has removed from it.
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