Making the Peace
By Robert M. Tessier
History is full of missed opportunities to make a just peace after war can not be avoided. Most litigants feel like combatants in a war of attrition in which resources are spent fighting rather than making profits. Many have personal interests and emotions invested in the dispute.
Lawyers are trained well to be litigators and to fight for their clients. They are the generals in a profitable war. Surprisingly, the majority of lawyers who litigate are not trained to make the peace. Only in the last ten years have law schools offered any courses of significance in ADR, and none are typically required as part of a core curriculum to graduate with a law degree.
Mediators are particularly skilled in navigating impasses that the parties can not overcome. Indeed, skilled mediators view impasse as opportunity.
It is a fact that, on many occasions, war can be ended only after the combatants are exhausted, either emotionally or financially, from fighting. If this is the case, mediation can assist in directing the parties to conducting more streamlined discovery to obtain facts which are at the crux of the dispute. Therefore, even if litigation can not be avoided entirely, mediation can assist in bringing it to an earlier end. This benefits the parties tremendously.
WHAT TO EXPECT AT MEDIATION AFTER LITIGATION IS COMMENCED
Participants in mediation after a lawsuit is filed are represented by their attorneys. Each side may choose to provide written briefs to the mediator outlining their respective positions in the dispute. Sometimes these briefs are confidential.
During the mediation process, there may be occasions when all parties are in the room together explaining positions. More often than not, however, the majority of time in mediation is spent in separate “caucuses” where information can be confidentially shared with the mediator. The mediator’s role is to listen and facilitate discussion, and most importantly to find the crux of the dispute and to work toward resolving the problem and/or harmonizing the parties’ positions.
Success in any business dispute is measured by the just peace, which is result in the continuing success of the venture. Misunderstandings and personality clashes with the inherent emotional issues they create must be separated from the truly irreparable conflict. When mutual profit is at stake, it is essential that the parties move quickly to attempt full and fair resolution. A skilled mediator can assist in this process, and make concrete suggestions to fashion the relationship going forward to avoid pitfalls and prevent foreseeable future disputes.