When I was a law student at Emory Law School in Atlanta, we had a very distinguished professor teach us about this newly developed process to settle serious disputes: Former President Jimmy Carter stood at the head of our classroom that semester in front of maybe 25 of us and spoke to us about Mediation.
At the time, President Carter was out of office a number of years and his main accomplishment in the White House was peace in the Middle East through the Camp David Accord negotiated between Menachem Began, Anwar Sadat and himself over a long period of time.
The entire system is called “Alternative Dispute Resolution” and whether in politics or law, unresolved issues can lead to war. In politics it often leads to a literal war with bombs and bodies and in law, it leads to a trial.
President Carter used classic mediator techniques to get these two very different men to finally come to an agreement of epic proportions. While that mediation may have changed the course of Middle East history, mediation is available to everyone.
First, while there’s nothing wrong with trials, they should be the venue of last resort. After a trial there is always a clear winner and a clear loser. Cases are rarely that clear cut – most plaintiffs and defendants are partly right and partly wrong.
I’m always amused by these TV ads for trial attorneys that make it sound like if your attorney isn’t trying your case, he or she doesn’t know what they are doing. Most cases are and should be resolved through settlement negotiations. There are exceptions to this – like the case that has huge value and the other side just refuses to put any value on the claim and a number of our cases have gone to a jury trial. But for the most part, by negotiating a settlement you are removing risk: The risk of an expensive trial, the risk of losing, the risk of owing court costs and the other attorney his or her attorney’s fees.
I’ve been to literally hundreds of mediations, and I can tell you first-hand the process works. At the initial caucus, each side talks about the strength of their case, the Plaintiff about the value of their claim, the Defendant about the merit of their defense. Sitting at the head of the table is a Mediator who is an impartial “arm-twister” who listens carefully for where the parties are in agreement and where there is dissent.
After separating the parties, the Mediator then goes to work. A good Mediator will get both sides in separate caucuses to appreciate the things all agree upon to build a consensus. Then they work on the disagreements. Shirt sleeves rolled up, a Mediator goes back and forth multiple times to build upon that consensus until there is an agreement for settlement.
To describe the process in greater detail would oversimplify the process and remove the brilliance of the human interaction with a good and skilled Mediator, but more than half the time mediation works. Typically, there is neither a clear loser nor a clear winner after mediation, but the uncertainties of a jury trial have been avoided.
At a successful mediation, both sides are fairly unhappy. One side has given up more than they wanted, and the other side has also negotiated beyond where they wanted to be. But, it’s over. Nowhere is that truer, than with the Camp David Accords. Egyptians and Israeli’s were both miserable with the outcome, but the result spoke for itself: Peace in a region that hadn’t had it in years.
I’ll always be grateful to President Carter for introducing us to Alternative Dispute Resolutions. Whether in a classroom, Camp David, the U.N. or the Hague, having the opportunity to build on agreements rather than escalating disagreements to the point of war (or trial) is certainly the way to go.