Question: Does Mediation Undermine Justice?
Critics of alternative dispute resolution have claimed that it undermines the rule of law and subverts justice. A court decision this week from California may lend support to these criticisms.
In a case titled “Wimsatt v. Superior Court” (PDF), the California Court of Appeals ruled on Monday that California laws barred a plaintiff from obtaining mediation briefs and related e-mails from an underlying lawsuit so that he could pursue a malpractice action against his former lawyer for conduct during the course of the mediation. The plaintiff alleged that his former lawyer had breached his fiduciary duty by reducing his settlement demand without his knowledge or consent.
California law shields from discovery communications made during the course of a mediation and provides no exceptions on public policy grounds. Although the law permitted no other outcome, the appeals court judge was clearly troubled by the result:
Our Supreme Court has clearly and unequivocally stated that we may not craft exceptions to mediation confidentiality. The Court has also stated that if an exception is to be made for legal misconduct, it is for the Legislature to do, and not the courts…
The stringent result we reach here means that when clients … participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel. Certainly clients, who have a fiduciary relationship with their lawyers, do not understand that this result is a by-product of an agreement to mediate. We believe that the purpose of mediation is not enhanced by such a result because wrongs will go unpunished and the administration of justice is not served.
The judge called upon the Legislature to act in the best interests of justice and the public:
Given the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the Legislature to reconsider California’s broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies be considered.
Like California, Massachusetts law protects the confidentiality of mediation communications. It allows no exceptions. Last September, the mediation community in Massachusetts formed a committee known as the MassUMA Working Group to explore the adoption of the Uniform Mediation Act. The UMA specifies a number of exceptions from the privilege, including evidence of professional misconduct or malpractice by a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation. Enactment of the UMA in Massachusetts would prevent the kind of unjust and unintended consequence that California has just confronted.
Mediators, still not ready to support public policy exceptions to confidentiality in mediation? Then consider the damage a case like this can do to public confidence in the mediation process. One blogger, law professor Shaun Martin, sums it up in a few harsh words:
Feel like committing malpractice? Selling out your client?
That’s the lesson of the day. Justice Aldrich doesn’t appear especially happy about the result, but he says that he’s bound by precedent and that any changes are for the Legislature to make, not the judiciary. Even if the injustice is manifest.
Remember that the next time you agree to participate in a mediation.
[thanks to MediationBlog]
How to Get Rid of Premature Performance Anxiety When Negotiating
From Online Guide to Mediation:
In my line of work, I help people do it all the time. And they all do it differently.
Some of them boast that they’re good at it–but in fact know only one way to do it. Some will stick with the position they’re comfortable with. Some lack confidence. They worry they won’t measure up. Others lack experience.
But in the end, with the right motivation, I can often help them do it better. And do it until everyone’s satisfied.
I’m talking about negotiation.
Hey, what else did you think I was talking about?
If you want to reduce performance anxiety at the mediation table, consider the following things you can do to make the earth move–or at least to be a more effective negotiator at the mediation table and elsewhere.
1. Preparation.
It’s been said that for every hour of negotiation, a skilled negotiator puts in four hours of preparation. One of the biggest strategic mistakes I see people make is coming to the table too soon–when they haven’t done the necessary preparation in advance. Besides just crunching the numbers, you should give thought in advance to:
Your interests. What are your needs? What goal do you want to achieve and why? Why does settlement make sense? If you’re at the table representing a client, you need to spend time in advance making sure you understand fully your client’s interests–something every advocate should do whether they’re headed to mediation or not.
Consider the other side’s interests as well. If you know what they need, you may be able to meet their interests in a way that will be more cost-effective to you.
Your alternatives. What happens if you don’t reach negotiation? How good are your alternatives? What can you do to improve upon them so you can negotiate from a position of strength? Consider the other side’ alternatives as well–how do their alternatives stack up against what you might be able to offer?
Options. Think of as many different options that you can. What will meet your needs? What will appeal to the other side? Is there a way to meet your interests and theirs as well? Come prepared to be creative.
Objective criteria. How will you know that any deal you reach is fair? What about your demands? What objective criteria are they based on? How can you convince the other side that those demands are fair?
Your relationship with the other side. What kind of relationship do you want to have with them when the negotiations are over?
Communication. What do you want to say and how are you going to say it? If communication has proved troublesome in the past, what can you do to improve it?
2. Be receptive to new ideas.
Chances are you need no help to bargain the old-fashioned way. You know, the kind where one side begins with an outrageous demand and the other side responds with an equally outrageous counteroffer, followed by incremental steps toward each other until you both find yourself agreeing to a dollar amount neither one of you likes. A mediator can help you try something different that may help you create more value than traditional bargaining can produce. It’s all about expanding, not dividing the pie.
3. Become self-aware.
As Gustave Flaubert observed, “There is no truth. There is only perception.” And our perception is distorted by the cognitive biases that all of us who are human beings are prone to. What might you be missing? Here’s a shopping list of cognitive biases for negotiators to watch out for.
4. Listen more, talk less.
The more you listen, the more you’ll learn–and the less chance of saying something that you may regret later. Listen to educate yourself about their interests. And talk to educate them about yours.
5. Learn to negotiate.
If you’re likely to be a repeat player at the mediation table, then it makes sense to learn mediation from the inside out. Take a mediation training to learn about the theory and the techniques of a process that is designed to help people negotiate.
Build yourself a negotiation library. Some must-read books for negotiators include:
3-D Negotiation: Powerful Tools to Change the Game in Your Most Important Deals, by David Lax and James Sebenius
Bargaining for Advantage: Negotiation Strategies for Reasonable People, by G. Richard Shell
Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher and William Ury
The Negotiator’s Fieldbook, edited by Andrea Kupfer Schneider and Christopher Honeyman
Influence: The Psychology of Persuasion, by Robert Cialdini
So be prepared for your next negotiation–or your next mediation session. Do your homework, get some training, read up on negotiation techniques.
The earth will be moving for you in no time.
