I recently saw the trailer for the Karate Kid remake, which made me wonder if it would match that thrilling moment in the original film where the kid suddenly realizes that all the time he thought he was just being exploited into doing a lot of backbreaking work, he was actually learning karate.
Here is a dream of how I’d like to conduct a mediation: We all sit in a room discussing who knows what, getting to know each other better. All of the discussion seems tangential, even completely irrelevant to the matter the parties are so concerned about. Maybe we tell stories or do some exercises or play some games that people find a little weird or uncomfortable. Or, even if they find the session interesting and enjoyable, they still wonder whether it has anything to do with settling a lawsuit. People might become a bit bored or frustrated. We still haven’t talked about the case at all. Finally, when some people can’t take it anymore, and are ready to walk out, someone suddenly realizes they have all the tools they need to resolve their dispute, and they are able to do it in about five minutes.
I haven’t actually succeeded in conducting this fantasy mediation, but I think about doing it. And I did once participate in a weekend retreat with my former law firm partners that went something like what I am trying to describe. What I do try sometimes in mediations is to avoid talking about the legal and factual disputes involved in the case for as long as we can, because I’d rather talk about the parties’ current business projects, or their plans for the future, or their interests and hobbies, or their kids, or anything, really, other than the dispute that brought them to mediation. I find that the further we can take those conversations, the easier it tends to be to settle the case.
I handled a mediation recently between two long-time friends who made an unfortunate decision to become business partners for a couple of years. The dispute that brought them to court was relatively small, involving a customer who had not paid them, but they needed each other’s consent or cooperation to resolve it. What prevented them from resolving that dispute were hundreds of grievances they had against each other arising from their failed partnership. Only after they both realized they just had to let go of all those grievances did they both realize how simple it was to resolve the dispute. (The entire mediation took about two hours, and we did the whole thing in joint session, without a lot of discussion of their respective claims in the lawsuit.)
Think of the mediator as a salesman. What are we selling? Peace, enlightenment, fairness, money, maybe all of the above. Sometimes the hard sell approach works, just pounding people relentlessly on the benefits of whatever values might appeal to them, and reminding them of the costs and risks of continued litigation. But other times it is beneficial to pursue the subject a little more indirectly, by contemplating larger issues of life’s meaning. Another movie scene comes to mind. Watch how Al Pacino’s character conducts his sales pitch in David Mamet’s Glengarry Glen Ross, asking his target to think about “what is our life?,” drawing him in by making him contemplate crossing the boundaries of middle class morality. Notice how Pacino deliberately downplays and even denigrates the value of whatever he might be selling, at the same time making the Jonathan Pryce character think that the opportunity he is being offered might actually be the key to unlocking the whole meaning of life:
I believe in honesty and transparency, so I don’t think I could be as devious as this character, but I also believe that you sometimes have to step back from or circle around whatever it is that most consumes your thoughts in order to put that problem in perspective, and solve it.