I remember a case I worked on a few years ago at a big San Francisco law firm where our client was caught up in litigation over an easement across her property. When our client initially visited the property before purchase, she saw her neighbor walking across her driveway. She asked the real estate agent to get that neighbor’s signature acknowledging no right to an easement across the property (which the neighbor had enjoyed for years with the previous owner). The neighbor signed the letter and the client purchased the house. After moving in, our client physically blocked off her neighbor’s access to the driveway with a very large tool shed. Enraged and insulted, the neighbor sued for right to an easement. They spent years and hundreds of thousands of dollars in litigation. At no point in the dispute did they speak to one another face-to-face.
Let’s be honest – if we tried really hard, could we come up with a more dysfunctional way to communicate amongst ourselves than via motions, discovery requests, and the occasional outraged, attorney-to-attorney letter?
It is ironic. Clients come to us with a problem. Technically, at the center of the maelstrom is a legal issue. But swirling around that point of law is a storm of emotions – anger, frustration, disappointment, anxiety, etc. And even when it is about money, it is not just about money. Money is highly symbolic. It represents security, prestige, respect, acknowledgment of harm done, and the desire to be made whole.
What got me excited about mediation was the possibility of fundamentally changing the way aggrieved parties seek damages. Instead of running from conflict, or hiring someone to wage our battles for us, we can find a safe space to re-engage, seek understanding, find power, and earn respect. Instead of duking it out through discovery and motions, we can discuss the problem in more commonsensical and personal notions of what it means to be harmed. Instead of assigning just a dollar value to our harm, we can allow parties to define and experience deeper, and perhaps emotional, components to their restitution.
This vision seemed to be reinforced by my law school courses and subsequent CLE trainings for budding mediators, which all seemed to teach the same understanding-based approach, namely, that the mediator should use an open session to facilitate direct, continual communication between the parties with the goal of unearthing issues, interests and emotions. The idea is that by addressing the parties' frustration, anger and pain, the mediator allows for catharsis and a communicative transformation that paves the way toward a creative and viable solution. Rarely have I seen that approach used in practice.
For example, I participated as an advocate at a JAMS mediation where the issue was a commercial lease dispute between a trust-landlord and a vineyard-tenant. As is the norm, after a perfunctory open session where the lawyers stated their positions, the mediator/retired judge put the parties in two separate rooms and ferried back and forth, evaluating the strengths and weaknesses of the cases and soliciting settlement proposals. A couple of times, my client said to the mediator: “I was really insulted by the letter the tenant’s lawyer sent me accusing me of being grossly unfair. I have had a long history with this tenant where I have tried to be accommodating, and it hurt my feelings.” The mediator never invited the other party in to process those emotions or discuss repairing the relationship. Moreover, when I cornered the mediator in the hallway and pointed out the utility of doing so, he looked at me with an attentive but blank stare. We didn’t settle. [To his credit, he did say to me afterwards: “I would really like to get together some time and talk about this whole ‘processing of emotions’ thing.”] I wanted to refer him to Gary Friedman, a well-respected mediation trainer in Marin. Gary encourages parties to speak about difficult emotions that have been part of the original conflict (and subsequent litigation process). Speaking about difficult emotions gives both parties a fuller understanding of how the conflict evolved, allows for a more meaningful dialogue about what is important to them going forward, and gives them a formative experience that they can carry over into life.
I recently mediated a family law matter in which divorced parents returned to me after the father stopped paying child expenses (in clear breach of the marital settlement agreement I had mediated a year earlier). Following the parties lead, we spent the first hour and a half processing lingering resentments from the marriage and dissatisfaction with current parenting roles. The father felt that, during the marriage, he wasn’t valued as a partner but only as a financial provider. These feelings of exclusion and lack of appreciation around his role as a parent were surfacing once again in their post-divorce relationship. During the mediation, his ex-wife articulated her perceived sense of abandonment by him after their daughter was born. Her feelings that she was not getting enough physical and emotional support from him in caring for their daughter led to resentment and distance. He, in turn, described how, during that first year of their daughter’s life, he was struggling to balance his economic and professional responsibilities and his need to spend time with both his new family and a son from a previous marriage. He felt that she did not appreciate his commitment and efforts to do the right thing by everyone and, instead, got angry at him and pushed him away. And now, as the co-parent without primary custody, he was feeling excluded once again in important decisions related to their daughter.
The majority of this session was structured to enhance understanding and gain clarity. We did not problem solve around the issues they raised, but rather focused on increasing empathy. And only toward the very end of our session did we turn to finances. After five minutes of hearing the mother’s explanations about the reason for the increase in their daughter’s expenses, the father said: “OK. I have heard enough. I get it now.” He cut her a check and walked out the door. He has not missed a support payment since.
Obviously, family law is more prone to emotionality than civil cases. But I would posit that every case has a significant, if not critical, emotional component – and one whose resolution is crucial to the overall settlement of the case. For example, the easement case cited above was about interpersonal, not street, access. In practical terms, not having an easement added one minute to the neighbor’s walk to the street. But symbolically, the tool shed embodied the message that “You are cut off!” from good neighborly relations like she had with the previous owner. It was, therefore, a deep insult and constituted a fight against the owner’s social message that “We will not be connected.”
And the landlord in the commercial lease dispute felt that her moral character had been unjustly impugned. She could not contemplate a continuing business relationship with a tenant who viewed her in such a negative light. She needed not only a lease agreement that was financially advantageous, but the resolution of a slight that was detrimental to her self-image.
Even the sophisticated business client wants to resolve issues on a deeper, more fundamental level than just the financial outcome. And I do not think it is presumptuous for mediators to facilitate such an experience. But I would posit that lawyers (particularly litigators) are not trained to delve into emotions and are not practiced in holding difficult, if respectful, conversations. And things don’t suddenly shift when we become mediators.
Mediation can be a challenging and anxiety-provoking endeavor. We all want to feel competent in our trade, so we fall back on what we know -- evaluation and traditional settlement-type negotiation. Asking mediators to contain difficult conversations in an open session, or to delve into emotional aspects, when that is not their strong suit, is a lot to ask. Particularly when counsel for the parties are also leery of those conversations and are pushing the mediator to evaluate their case and facilitate financial offers in a caucus dynamic.
When done well, the process of mediation, not just the financial outcome, makes the client whole. Through understanding-based mediation, anger can subside, relationships can be repaired or closure achieved, and clients can move on. Intelligent minds can disagree about what is appropriate, or perhaps feasible, during mediation and how our clients can best be served. But let’s at least not allow our limitations to define our aspirations.