Mediation and control in a world of uncertainty

Despite Mark Twain's famous observation about reading the newspaper -- "If you don't read the newspaper, you are uninformed; if you read the newspaper, you are misinformed" -- I read the newspaper, "cover to cover" every day. Of course, with the advent of social media, the newspaper isn't the tome that it used to be, which makes the exercise of reading the newspaper every day pretty quick and simple. Or, as a millennial might say: "useless."

While newspapers might be shrinking, there is one thing about the news itself that remains constant: stories that focus on the uncertainty of the world around us. Whether it's a new tax bill, an outbreak of the Ebola virus, the threat of Russian expansion into the Baltic States or the relations between police and the communities they are sworn to serve and protect, it's apparent that the world is a very uncertain place. Likewise, as individuals concerned with our own personal well-being, we are all persistently aware of the uncertainties of life, whether they be health, work or relationships. Things change, and they change in ways that we don't control. Although different people deal with uncertainty in different ways, and some people deal with uncertainty in ways that are healthier than others, it seems to be a fundamental fact of human nature that uncertainty makes us worried and uncomfortable.

What do these philosophical observations have to do with mediation? Perhaps a great deal. Uncertainty permeates every dispute. Litigated disputes are permeated with uncertainty because of the simple, inescapable fact that nobody can predict the outcome of a lawsuit. The outcome of lawsuits is unpredictable for at least three reasons: (1) liability may be questionable; (2) damages may be questionable; and (3) even if both liability and damages are reasonably clear, there are many "intangibles" that affect the ultimate outcome of a lawsuit in ways that are impossible to predict. There are many such intangibles, including the "likability" of the parties, certain pieces of evidence that could potentially de-rail the prosecution or defense of a lawsuit, economic or emotional factors that could affect the ability of the parties to proceed through a trial or arbitration, or latent or patent bias on the part of the trier of fact that could affect the outcome. It is equally impossible to predict the outcome of disputes that are not yet in litigation for many of the same reasons, including the fact that a dispute that is not resolved in mediation will likely end up in litigation and thus subject to the vagaries of the litigation process.

It is my experience that the natural tendency to become worried and uncomfortable due to uncertainty becomes amplified in the context of a dispute, whether in or out of court. It seems that there's a material difference between experiencing uncertainty from a distance and experiencing it personally and immediately. It's one thing to read about the further degradation of regional politics in the Middle East and wondering how it might affect you, but it's another thing to be gambling tens or hundreds of thousands of dollars (or even more) of your own money in a lawsuit and wondering whether you are going to win or lose what might be a life-changing amount of money. There's another important difference: even if you follow world events closely, and with an intense interest, most people have no control over those events. When you have no control over events and the uncertainty that those events create, you might be disturbed, frustrated or upset, but you likely won't lose sleep. The same can't be said of events that you at least partially control, such as your lawsuit. A lawsuit, with its curious mix of control and lack of control may consume you and even cause you to become a physical or emotional wreck.

This is why, in the words of one of my mediation colleagues, uncertainty is the stock in trade of mediators. Even the most passionate advocate, or the most determined client, recognizes the fundamental reality that passion and determination do not necessarily translate into certainty. Your passion, in other words, doesn't guarantee a verdict in your favor. Fundamentally, the intellectual recognition that all disputes have an uncertain outcome, and emotional acceptance of that fact, is what drives the settlement process. It is what drives plaintiffs to accept less than what they ideally would like to receive and defendants to part with more than what they ideally would like to pay. And, it is the task of the mediator to propel the parties toward the intellectual and emotional acceptance of uncertainty in order to achieve a resolution of the dispute.

But I believe that it is not merely the elimination of uncertainty that makes settlement a more attractive alternative than continuing with a lawsuit or not resolving a non-litigated dispute. I believe that a second factor, the idea of control, or at least the feeling of control, is equally important, particularly from an emotional perspective. In a lawsuit, clients are at the mercy of the system, in much the same way that someone who is ill is at the mercy of the health care system. In mediation, clients and lawyers are in control of their own destiny. They make a settlement that they control, without leaving their fate in the hands of 12 strangers who happen to be serving on jury duty.

How can you, as the lawyer for a party at mediation, better help clients to understand these two important factors? First, by introducing at an early stage of your discussions with your client the following two concepts: (1) surrendering to the legal system means surrendering control; and (2) settling a case at mediation means gaining control. These two concepts are kissing cousins to the third important concept that you should discuss: settlement does not occur without compromise. It is valuable to discuss the issue of control while discussing the idea of compromise because clients, like anyone else, are typically resistant to compromise. They feel that they are right, that there is a mountain of evidence to support their position and that any judge, jury or arbitrator will see that mountain of evidence and come to only one conclusion: they should win and the other side should lose. Compromise, in other words, is viewed as a negative. Control, however, is viewed as a positive. The positive influence of control can often help clients deal with the negative feelings generated by the need to compromise.

Waiting to raise these ideas with clients at the actual mediation is rarely a good idea. Clients need some time to adjust to these ideas, even though they may seem very basic to an experienced litigator who has handled many cases and many settlements. In my own mediation practice I almost always introduce these subjects immediately after I sit down and meet the clients for the first time. I usually tell people that my role is twofold: (1) to help them analyze risk; and (2) to help them manage risk by making a settlement that they control. I do this deliberately -- because I know that often the client is hearing this information for the first time (although I hope that the lawyer has already explained it prior to the mediation).

The idea of control seems to consistently resonate with clients, and as their lawyer, you can assist them in this process by bringing the settlement discussions under the "umbrella" of control. For example, by saying things like: "You control what you will accept [or pay] to settle this case. Or, "We can always go to court, but if we do, we can't predict what will happen. But here, when we settle, you control what happens. You decide what will happen." Or, "My experience is that it's usually better to decide for yourself rather than having other people decide for you."

Every client is unique -- not every approach at mediation resonates with every client. Having said that, the idea of control seems to have almost universal appeal to clients. Perhaps this is so because of one last factor: finality. Control and finality walk hand in hand. When a client controls the process and settles a case, there is finality. When there is no settlement, there is no finality, there is only more fighting on the seemingly boundless and endless battle field of litigation.

For better results at mediation, keep in mind the need to clearly articulate the issues of compromise, control and finality well in advance of mediation to prepare your client to take charge and reach a positive resolution.