The three little letters

Many tangible and intangible factors can either push a mediation toward a settlement or pull the parties backwards - forcing them to continue their battle in court or arbitration. While imperfect, a settlement is almost always a better alternative to the expense and uncertainty of litigation.

One of the most important factors that pulls parties away from settlement is a focus on principle instead of principal. Hence "ple," the "three little letters" in the title of this article.

A focus on principle occurs in all kinds of cases, even those that you might think are "strictly business." It typically manifests itself when mediation enters the "difficult" phase - as the parties get closer to reaching an agreement - but the momentum slows and parties become frustrated. At this point it is common to hear the plaintiff say they only want what's "fair" or "I'm not asking for a penny more than what I'm entitled to," or "I just want justice." The plaintiff may also reinforce this approach by accusing the defendant of being unfair or shifting the focus away from the numbers. Usually, a plaintiff who wants to convince the mediator that the defendant is being unfair will tell the mediator that the defendant is not negotiating in good faith, is being unreasonable or dishonest.

What happens when the plaintiff shifts focus away from the money and toward issues of principle? A plaintiff will often say something like: "You need to understand, he needs to be taught a lesson," "I want to make sure that she doesn't do this to somebody else," or "He needs to admit that what he did was wrong." "This is a matter of principle" is also commonly used.

Regardless of how it's phrased, a shift in focus from principal to principle signals one thing to a mediator: Mediation may be going off the rails.

Why does a shift in focus present such a profound challenge and how can you, as the lawyer, keep the train moving down the track toward settlement station? The answer, though somewhat philosophical, is based on the nature of litigation and the mediation process.

Parties to lawsuits, especially parties who by temperament are inclined toward a focus on principle, often have unrealistic expectations about the court system. We all grew up learning about "the justice system." Every state and the federal government has a "Justice Department." Inscribed on the pediment on the front façade of the U.S. Supreme Court are the words "Equal Justice Under Law." "Justice" is everywhere you look. Given this environment, it's hard to fault a party who expects to achieve justice in court.

But what happens in court or arbitration? At a basic level, what happens is much simpler - a resolution. Two parties who cannot resolve their differences go to court or arbitration to let a judge, jury or arbitrator decide. Is this justice? Perhaps but it depends on a lot of considerations. Is it "just" if a party "wins" but at great financial cost? Is it "just" if intangible factors influence the outcome of a trial or arbitration that have nothing to do with the merits of a dispute?

I am not suggesting that there is no justice in trials or arbitration. Sometimes David slays Goliath in court and everyone applauds. An unjustly accused criminal defendant who ultimately wins freedom after a long struggle represents a classic example of how "justice triumphed." And, judges, juries and arbitrators are often focused on what is "just" in a given case.

Having said this, I return to the basic concept that trials and arbitrations are intended to get a result. If justice is done along the way, even better. If not, the parties are still bound by the result and even the winner might be unhappy if "winning" did not equate with "getting justice."

How does this connect to the expression of principle in mediation? First, mediation focuses on getting a result rather than on the more elusive concept of justice. As noted in the introduction to this article, mediation focuses on reaching a result that while imperfect, is a better alternative then continuing with litigation. Second, because of the focus on result, a person who is seeking "justice" or who is focused on principles, may be unhappy with the process. Such a person may view the process as a failure because the process is not meeting the person's basic goal - addressing principles and not economics. Third, a person who is unhappy with the process will not embrace it, and will view the mediation as a waste of time, effort and money.

How can you, as a lawyer for a party attending mediation, keep things on track? Have an open and frank discussion about what happens in mediation compared to what happens in court. Explain that mediation isn't a process of getting justice - it's a process of getting to a result. Help the client understand that mediators aren't in the fairness business, they are in the settlement business. If you perceive that your client is likely to be focused on principle and not principal, let the mediator know in advance, either in your confidential mediation brief or in a phone call. This will allow the mediator to address this focus earlier and not later so that the parties can concentrate on a resolution. Also, think about whether there is something that can be folded into the settlement that might satisfy the need for "justice." Perhaps the defendant could write a letter of apology. In a famous case often discussed by mediators, a young person was killed in a traffic accident. The City was sued and offered a substantial amount of money. The plaintiff parents were unsatisfied. Eventually, someone had the idea of the City naming a park after the victim of the accident. This satisfied the emotional need of the parents and the case settled.

Lawyers often expect the mediator to refocus the client from principle to principal. It is critically important to know that even the most skilled and persuasive mediator can rarely achieve this without the active support of the lawyer. It's a truism of mediation that clients listen to lawyers first and mediator's second. If you find yourself in a situation where the client has articulated a focus on principle and the mediator is struggling to refocus the discussion, you need to support this effort. Finally, for a mediation to succeed in the context of focus on principle, the emotions of the party must be acknowledged. Feelings, rational or not, are real. One strategy for dealing with this is to discuss the idea of balancing the need for principle with the need for a resolution that might not include the principle at issue. Instead of dismissing the idea of principle, point out that while principle may be important, it may be equally, or even more important, to reach a resolution, by focusing on the practicalities of the process - time, expense, uncertainty (and the benefit of avoiding all of these by the certainty of a settlement).

As a mediator, I admire and respect persons of principle. However, dealing with individuals whose decision-making process is based on principle is challenging and requires a careful approach. As counsel, it's important to be aware and prepared to deal with the emotional needs of a client, provide support to the mediator, and achieve the best settlement.