Pro Bono Distills Dispute Resolution To Its Very Essence

The world is awash in Conflict. It is all around us, virtually all the time.  The world is a perfectly tuned perpetual motion Conflict machine.   Recently the most visible Conflict on the world stage is, once again, the Middle East.

It is profoundly disturbing to watch, night after night, the endless scenes of neighbor pitted against neighbor, mortal enemies locked in a seemingly inexorable dance toward the slaughterhouse.  Each side confident in the knowledge that God is in their corner, and that responsibility  for all of the fear, anger, hostility, brutality and  the sheer horror of it all, rests solely at the feet of the enemy.

Although these images are ever present and difficult to escape, I have found the perfect antidote.  For 8 to 10 hours every day I am oblivious to this inhumanity being played out on the world’s stage.  How did I get so lucky?  It’s simple.  I work in The Human Stress Factory.  Some people refer to it as a law office.  When you work in The Human Stress Factory your mind simply cannot wrap itself around anything happening outside the padded walls of the work environment.

The law office is a perfect microcosm of the world at large.  We have Conflict in virtually  every nook and cranny  of our 1200 square feet of the Universe.  Open the door?  Shake hands with Conflict.  Pick up the phone?   Say hello to Conflict .  Read the mail?  Salutations from the very  masters of Conflict.   Since Conflict is such an integral part of the law business, our landlord actually charges us rent based on the amount of Conflict we have per square foot.  Only in Jackson Hole!

This may  come as a surprise to some of you, but there are actually people out there who hold lawyers in low esteem.  I’m not kidding.  But truth be known the law office is not a place for sissies.

Think of a law  office kind of like a bank,  a bank for Conflict.  Clients come to the office and deposit their Conflicts with us.  And our job, believe it or not, is to find a resolution for that Conflict which  produces a feeling of euphoria as you leave your lawyer’s office feeling so thankful to be alive.  Well, sort of.

The good news about Conflict is that wherever and whenever it appears,  Conflict Resolution is usually not very far behind.  And I am pleased to report that there has been a subtle shift in emphasis recently in the Conflict Resolution business.

For the first 6000 years of history on this planet Conflict Resolution was determined by the person holding the biggest stick.  Then there were the middle 400 years or so.  Not really  worth talking about  except, of course, for O.J. Simpson.

O.J. notwithstanding,  for the last 10 to 15 years there has been a push toward resolving disputes outside of the courtroom.  Our statute books now  contain the phrase “alternative dispute resolution”, which refers to mediation, arbitration, and any  other creative process capable of resolving a dispute other than by a judge or jury  in a courtroom.

In Wyoming either party to a lawsuit can demand that the claim or dispute be referred to a mediator.  The Judge then orders the lawyers to designate a mediator and attempt to resolve their differences through the mediation process.  How does it work?

Mediation can occur at any time after a lawsuit has been filed.  It usually works best after each client has experienced some pain and frustration in the litigation process, and after the lawyers have had the opportunity to learn the intricacies of the case.  But the rule of thumb is the sooner the better.

The mediator is typically a lawyer with some level of experience in the subject matter of the case, and who has at least some formal training in conflict resolution (there are now lots of week-long seminars on the subject).

Mediators generally  come in two basic flavors, vanilla and chocolate.  The vanilla-flavored mediator is more touchy-feely, gently nudging the parties to reach a settlement on their own terms without overtly commenting on the merits of the case from the mediator’s perspective. The chocolate-flavored mediator is more of a head banging, arm twisting kind of guy, who doesn’t mind telling a party and his/her lawyer that he or she is taking an outrageous position that is sure to sink them at trial.  The really good mediators move easily between one style and the other depending on the moment.

The mediation session takes place in an office conference room rather than the courtroom.  It can last 12 minutes or 12 hours.  Although each mediation is unique unto itself, and is usually a reflection of the personality and style of the mediator, many mediations begin with the parties initially  gathered in the same room.  The mediator will typically make an opening statement explaining how the mediation session will work, the benefits of mediation, and the vagaries of the litigation process (which of course you already know or else you wouldn’t be sitting there surrounded by three lawyers and your soon to be former spouse, or soon to be former business partner, or…….fill in the blank).

After the mediator makes an opening statement, the parties usually separate into different rooms.  They will remain in separate rooms until an agreement is reached or the mediation is terminated.

The mediator initially meets in private with the Plaintiff and his/her lawyer.   (Prior to the mediation each lawyer has provided the mediator with a detailed  written statement outlining the party’s position.) The mediator uses this time to develop a rapport with the party and to further understand the party’s position.   The mediator then meets with the other party.  These initial private conferences usually last between 30 and 60 minutes.  Depending on the complexity of the issues and the state of mind of the parties, the mediator may  spend 1 to 3 hours in private conferences before attempting to move the mediation forward.

The mediator then shuffles back and forth between rooms as need be, attempting to move each party toward middle ground and ultimately  into a  settlement.  Either party  can terminate the mediation at any time.  Neither party can be forced to settle.  And settlement is purely voluntary. Although I assure you that it doesn’t always feel that way in the heat of the moment.

I like mediation.  I think it is a very helpful tool in the Conflict Resolution business.  A successful mediation usually means less lawyer fees (which I understand may  not appeal to you), it usually shortens the process by a matter of weeks or months, it is  far less of a strain on clients and lawyers than trial, and allows for greater flexibility  in the final result.

Horse trading is an option in mediation.  Horse trading is not an option in trial.  Once the Judge puts on that goofy black robe and sits behind the bench at high altitude, without the benefit of oxygen, things are entirely beyond your control.  The Judge is not likely, for instance, to lean over to you during your divorce/custody trial and ask if you think it’s okay if he awards custody of the kids to your husband, or if you think it’s okay if he orders you  to pay  two-thirds of your pension benefits to the little lady.

If that sounds good to you, then mediation is probably not for you.  In fact, you may not even need a lawyer.  You might do much better with a psychiatrist.  Call me and I can make a referral.

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