Saturday, July 02, 2011

Mediation and Litigation: Very Different Skill Sets.

I was trained in the art of dysfunction.  In law school, we built our knowledge base around the word "versus" as in Palsgraff v. Long Island Railroad or Roe v. Wade.  There were clashes of will, obstacle courses of criminal or civil procedure, battles of law, and in the end, an order that decided a winner and a loser.  The whole system from beginning to end is an exercise in admitting no wrong, crafting the best spin, accusing the adversary of causing injury and injustice, or seeking to cast blame without evidence.  Can you imagine a law professor or a judge admonishing a young lawyer or lawyer to be to "listen with his or her heart"?  The irony of the practice of law is that most of it is built around negotiation.  Negotiation requires trust and clarity.  Litigation requires ammunition and the readiness to use it.  It operates best based on surprise and overwhelming force.  Hardly a trust builder.  

I graduated from law school 34 years ago.  The advent of "Alternative Dispute Resolution" or "ADR" was not then part of the legal landscape.  There were no classes in Negotiation or ADR.  Now, ADR is a specialization and trained mediators often study for a year or more to become certified after acquiring their law degrees and practicing for a number of years.  Mediation works best when it operates as a "reality check" for the parties, and is delivered by an expert deal broker with no skin in the game, but who knows the world of litigation and the unpredictabilities of the courtroom.  But more than that, is the ability of the mediator to bring a different emotional and psychological temperature to the history of the case.  Parties who are being insulted and attacked are notoriously bad at listening or wanting to make concessions.  How reality is communicated is as important as the reality itself. To be told clearly without malice or personal agenda that you have no case [or no defense] is truly the mediator's art.  

Employee Rights Attorney
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