Mediation: Another string to your bow

Real Estate Issues, Summer 2002 by Howe, Edwin Jr

INSIDER'S PERSPECTIVE

FOCUS ON LEGAL ISSUES

My tendency is to set a certain store by titles and subtitles. For example, the subtitle of this piece might have been "Another Arrow for Your Quiver," or "Another Weapon for Your Arsenal," or "Another Layer to Your Armor." I like the one I have chosen, however, because it seems to exemplify the "creative, flexible neutrality" that is inherent in the mediation process.

Put simply, mediation is a process whereby the parties to a dispute seek to resolve the dispute via the facilitation of an independent and neutral third party, ideally someone professionally trained and experienced in the field of mediation. Having said the foregoing, I have to disclose that I personally cannot quite claim that degree of professionalism. I have taken a course in mediation sponsored by the National Association of Realtors. I have subscribed to the very nearly spiritual point of view that an adherent to mediation seems to develop. And I have participated, with a degree of success I believe, in several mediation simulations. For the moment, though, I am espousing something like pure theory. When I have had practical experience with real-world mediations, I may be back to you with variations on the theme stated below. The theory to which I refer, however, has opened new vistas to me in more than one respect. I hope you will agree that it is worth the expenditure of paper and ink to summarize it here.

When I say "Another String to Your Bow," I am referring to the bow of a party to a dispute and his legal advisor. If the parties are unable to resolve their dispute via negotiation and compromise, their classical resort is to litigation. In that setting, (1) unless all of the lawyers on both sides are men of good will and integrity, having their respective clients' respective best interests at heart, and (2) if none of the parties themselves are the sort that say, "My way, right or wrong, and I'll fight the matter to the death!", the parties are in for an unpleasant and normally expensive and disappointing experience in choosing to litigate. Contrariwise, the lawyers involved are handed the ticket to the gravy train that litigation all too often represents.

Litigation is a highly formal process, involving discovery-exchange of documents, onerous written interrogatories requiring very carefully phrased written answers, and seemingly endless depositions-before the matter even gets to court. Both depositions and testimony at trial are governed by rules of evidence that are rather archaic and difficult to understand and apply. The tests for admissibility of evidence will normally be subject to seat-of-the pants interpretations by the trial judge that often are unappealable as a practical matter. The entire litigation process will be carried out under the supervision of a judge, or even a succession of judges, whose mission in life is to "clear the calendar," that is, to take advantage of their own pretrial decisions in an attempt to force the parties into a settlement. All too frequently, neither party subscribes to the settlement, but the parties accept it in order to avoid the further expense of a full trial in court. Often that acceptance also spares the parties the uncertainties arising from a jury trial, which is truly a roll-the-dice process.

One alternative to litigation for dispute resolution is arbitration. In many cases the parties' contract calls for arbitration as a mandatory alternative to litigation. In other cases, the parties may simply agree that both of them want to go to arbitration, rather than litigation. In arbitration, there normally are no depositions, except in relatively complex cases and certain special situations (such as impending death of a witness whose testimony needs to be preserved); documentary discovery tends to be less onerous on the producing party than is the case in litigation; interrogatories are normally forbidden; and the rules of evidence are looser than in litigation. The parties frequently have the benefit of adjudication by an arbitration panel having a degree of expertise in the field from which the factual issues emerge (seldom the case in litigation, even where there is no jury). But a common frustration in arbitration (other than international arbitration) is that the arbitration panel is normally required to make an award-i.e., who wins and for how much-without a supporting opinion. Of course, this frustration is the same when a litigation is tried before a jury or is resolved at a bench trial where the judge decides not to render a written opinion.

Another virtue of arbitration in my judgment is that the arbitrators are encouraged to impose a resolution that is just and equitable, not necessarily strictly in accordance with principles of law (though some states, including New York, unfortunately are tending more and more to limit such discretion on the arbitrators' part). My own view of law vs. justice can be summarized by an incident that has resonated in my mind and soul for fully 41 years. I was attending the first week of my freshman course in real property law, taught by Michigan's legendary Dean Allen Smith. We were using Dean Smith's casebook, of course, and he had carefully dropped a moral trap into its early pages. A case had been decided in a manner, while in accordance with binding legal precedent, that was manifestly unfair to one of the litigants. After discussion of the case, one of the students raised his hand timorously and said, "But, Dean Smith, that result isn't just!" Feigning great indignation, the Dean replied, "Justice? JUSTICE! You're not here to learn about justice! YOU'RE HERE TO LEARN ABOUT LAW!!" An unforgettable introduction to the real world by one of its sages.