Litigation vs. Mediation – The Challenge is the Adversarial Ethic

January 23, 2015    Blog

I was asked by a national bank this summer to give an interview about mediation for their bank sponsored magazine geared for their business clients. A senior marketing executive at the bank recently e-mailed me saying that unfortunately the bank’s legal department asked her to pull the article from publication saying they “didn’t like the topic of choosing mediation over litigation” and that to publish it was “too risky”– essentially, mediation competes with litigation. Even though the bank’s marketing for business expressed they liked the article and disagreed with legal, “legal wins” as they said. Of course I was disappointed. More so, I was troubled. Yes, through the eyes of litigators who have a vested interest in continued fighting and continued strife, mediation certainly can be viewed as competing with litigation. What saddened me though was the missed opportunity for the bank to provide valuable information to its clients. The bank prides itself on doing business relationally and also promotes in its branding its desire to help businesses and their owners thrive and to have financial wellness. What was most disturbing to me was what the bank wanted but was bullied out of, as if the bank business group was extending its hand to its clients only to have it twisted behind its back against its will.

Let’s take a look at this situation a bit more closely. The bank’s business banking marketing department requested info to be published to benefit their business clients. They reviewed the final outcome of an interview on mediation and liked it. They sent it to the bank’s legal department as banks must for compliance. With one email from the legal department, stating nothing about any basis of non compliance, but stating they didn’t want to promote the choice of mediation over litigation, the article was pulled, and the publishers submitted to abandoning their original intention to be helpful to their readership. Is the bank in favor of litigation? I don’t think so. I imagine that getting a reputation as litigious would make most bank execs shudder.

So what happened and why is this important? I was a litigator. I can tell you what happened. But first let me share that I left the practice of litigation 21 years ago to found a firm built on mediation and the promotion of peaceful, cost effective and sustainable resolutions though quality dialogue. It isn’t only my business, it’s my mission and the mission of our Baltimore Mediation team. We believe in the transformative power of quality dialogue. We believe in the restorative power of a conversation driven by participants who are courageous enough to have a face to face candid discussion with the assistance of a skilled mediator. Mediation creates the safe space, supported by confidentiality both statutorily and via state and federal court rules– nothing in the conversation can be used for or against any party in an adversarial context. It’s a powerful process for those who have the courage to request or demand it. When faced with legal trouble, many if not most businesses do not even know this process exists as an option because the information is not shared with them by their litigation counsel. And you now understand why. Litigators consider mediators “competition.”

In a transformative mediation process, shifts happen and disputes and difficult situations are made better. The transformative mediator assists with clarifying barriers, sharpening the commonalities as well as the differences and helps the participants exchange information and explore possibilities, both pros and cons, very proactively but without pressure to agree or to compromise. A good mediator knows that pressure to agree is not necessary; authentic terms of agreement are a natural byproduct of honest and open discussions and thoughtful evaluation. A good mediator knows how to foster and broker quality interactions and outcomes. In a good transformative mediation, participants are not separated from each other by a mediator or by their lawyers, nor are they eclipsed by their lawyers in what they want to talk about. The participants may choose to meet separately to think more clearly or to talk between themselves or with outside persons, but a good mediator brings the participants back together in face to face dialogue where the real breakthroughs happen. This is the transformative aspect of mediation. This is what most business men and women yearn for when faced with a lawsuit or difficult business situation. But the legal approach often stifles this, or muzzles the voices of those who are, have been and will be most impacted. Fortunately for some businesses, they have enlightened attorneys who understand the power of the mediation process and know their clients will likely return for advice when they feel supported in a mediation process that empowers them rather than strips them of power. A true service to the participants. Transformative mediation is about the breakthroughs necessary for effective and satisfying negotiation and outcomes for all who participate. And yes, it definitely saves a lot of money and is far less expensive than litigation.

I believe that individuals, no matter how unreasonable or obstreperous or crazy one or the other side thinks they are, can arrive at solutions that work for them, for both of them, for all of them when given a chance to talk face to face openly, protected by the safety of a mediation process which is not focused on forcing people to agree but is focused on quality interaction. I know this. I have felt it, witnessed it and been an instrument for it thousands of times in my own mediation practice. I know that transformative mediation is a powerful force, one that brings authenticity to human relationships.

And as for agreements—they are natural byproducts.

But, in our often highly transactional American society, the legal department’s pulling the article on mediation made sense, right? In a world where we want to maximize self-interest and fuel an adversarial ethic, an article even suggesting that an alternative process could be beneficial– where people could work it out without exhausting themselves and their resources in a labyrinth of legal hoops — is bad news for those in the business of litigation. I pondered again about the powerful grip the legal bar still has on the dispute resolution industry and on the empowerment of people who want to live in a civil society and how narrow the institutional lens still is, even after all these years. There are brave souls practicing law and in legal departments who call upon the mediation process regularly and others who have gone so far as to institute mediation as a precursor to even filing a suit or responding to a complaint. They, like the clients who request or insist on mediation, are the heroes. But we have a long way to go.

As for the issue of profits, is mediation bad news for business profits generally? Absolutely not. When businesses choose transformative mediation as their process to work out complex disputes, sticky personal conflicts between executives, or difficult or uncomfortable employment or client matters, business is enhanced because the matters are typically worked through quickly and resource-efficiently in one or a few meetings. And outcomes are acceptable and more sustainable because they are neither arbitrary nor forced, but are created by the participants themselves, with process assistance of the mediator. Most importantly, for the long run, transformative mediation is a way for the relational aspect of doing business to be restored. I think that was the information the bank wanted to convey to its clients most of all.