Can Your Recall Just One Thing Not a Gift in This Life?
All you big-shots who swagger, and stride with conceit. I’m talking to you.
Really awesome band and song.
Welcome to Tampa Mediations x
When Mediation is Just Another Tool in the Adversarial System
..”the type of “mediation” primarily used within the legal process is merely an adjunct, a tool, of our adversarial justice system. It is an institutionalized type of settlement negotiation that is a far cry from mediation.
Even when litigated cases settle through “mediation,” rarely have I seen anyone who is pleased with the result. These mediations are often marathon sessions with the parties waiting to see signs of weakness in each other, particularly during the last mile. The only upsides of settling through this type of mediation is the relief from the being stuck within the molasses-slow justice system (i.e., years of one’s life) – and, the relief from the further draining of funds.
This is part of a comment from a paralegal and part-time mediator named Debra Healey in response to an article on Huffington post Hawaii touting the benefits of mediation. And she is spot on.
Cary and I work hard…I mean real hard…trying to mediate our cases differently – that is – truer to what mediation really is…not compromise but meeting interests. It is hard when so often lawyers are not in for that process and in fact look to those mediators they know who are going to “get it done” or force the settlement. They really think those kinds of mediators are great. Know why? Cuz they meet the lawyers’ needs. They got the right tech equipment, the space is comfy, they are buds, and they know X mediator is going to force the deal at the end of the day. Look…I’m not saying that kind of mediator might not be necessary sometimes – but any mediator who is trying to be true to the profession and is trying to learn new skills and understand what makes people come to agreement and really move on, knows that kind of mediating might get the deal done but definitely leaves that yucky aftertaste. Furthermore, that deal rarely contemplates the future and how those parties will interact, if at all – that deal only deals with the present and getting the immediate conflict done.
But wait…Cary and I “get it done.” Yup…we do…we have settled nearly all our cases and we know that in most, not all, we have done a good job because we have followed up. So why do we see lawyers continuing to use mediators who force the deal? Well, in addition to the reasons I laid out above, I also believe that the way Cary and I mediate requires lawyers and parties to stop seeing win, lose or compromise as the alternatives and instead see the mediation process as an opportunity to craft a solution that meets their needs. Sounds simple but it is not because so many clients and their lawyers have never examined their needs. Not really….not really looking in to determine if what is on the surface is what is real. It also requires lawyers to start speaking to their clients earlier on about their clients’ real interests. This ain’t easy and often requires a different way of representing and discussing the mediation process. For many clients who walk into a lawyer’s office or mediator’s office, they want to hear that they are right and that they are going to win. They have tried reasoning with the other party and now they want justice – well, their version of justice. It takes effort and guts to move people out of that mindset. That does not mean dispensing with legal advice but that advice has to work to help set up the BATNA – the best alternative to a negotiated settlement – and not just be the end all itself. Unfortunately, though what most of us have come to expect from lawyers is a hired gun. If that lawyer does not meet our expectation of a hired gun – we move on to find one that does. That’s how so many cases end up locked in the lengthy, ugly legal storm and that is why mediation becomes this all or nothing compromise.
But as I tell lawyers all the time – your clients listen to you – so if you start seeing interests and stop seeing win, lose or compromise – you can change the tone of representation and the mediation process and you can be a more positive influence to your client. It’s risky I know – it bucks the norm and some clients won’t buy in because of the entrenched mindset of what lawyers are supposed to do. Yet, it is where the legal system is headed and it will make lawyers lives less stressful, less conflict-driven and more satisfying. Also, well after the case is over, your client will remember you far more fondly and as someone who cared and acted in their best interest.
Mediation Entering the Medical Malpractice World
Oregon’s new mediation law allows facilities, doctors and patients to settle malpractice claims or injuries through mediation before a lawsuit is filed. While hailed as wonderful new tort reform, yes sir!, this article discusses an aspect of the law that makes it easier for bad doctors to escape their past.
For me, this law is good tort reform. Medical malpractice is an area of the law that is really out of touch with the reality of the crumbling relationship between doctors and patients and implementing mediation into the process, especially in lieu of caps – as suggested by Republicans – is a step forward in changing the doctor/patient relationship. Although I do see the problem as articulated by the article: that mediating a potential medical malpractice case before a lawsuit is filed allows bad doctors to escape their past by failing to report the case to the national databank that keeps track of this kind of information, this is a kink that can and should be worked out.
I reiterate, however, the bigger issue that must be addressed is the doctor/ patient relationship. This is not new thinking but it must be said and said again. There are misunderstandings on both sides in regard to things like what medicine can do, what is really going on with a patient, and the issue of whether either the doctor or patient cares about the other in the relationship. The doctor/patient relationship is strained these days because it is rooted in distance, often fear, and a lack of personal communication. This must change at the encounter stage. Doctors are people and patients are people. Where is the reality of a relationship that contains trust and truth and collaboration and commitment? These are some of the qualities missing in so many current doctor/patient relationships.
However, the fact that mediation is being introduced prior to a lawsuit will allow a new kind of dialogue to occur. I realize it is after the fact, that is, after the relationship may have soured, yet my experience in the mediation field tells me any time their is the opportunity for real dialogue there is hope. The opportunity to move forward, to reestablish a new understanding/relationship, and for both parties to heal and right the relationship are very real and satisfying results – and for most, more satisfying than money. I am a fan and hoping that more states adopt a similar law.
