The Conflict Continuum

It is helpful to consider a dispute as a continuum of conflict where on one end is the “dispute” and the other end is “resolution”. In the middle are a number of signposts where the parties have real and substantive moments to reach closure.

On the right end of the continuum is a jury trial, which is the most effective and elegant approach developed by our judicial system. It has succeeded for centuries and is the cornerstone for everything else that flows from the system. The real challenge with the jury trial is that it is only available for less than 3% of all cases. That means the civil justice system had to create other methods to deal with the 97% of cases that are in need of resolution.

On the left end of the continuum is self-help. While it is not encouraged in the face of breaking the law, it is a common form of dispute resolution where parties take matters into their own hands. Early hunters and gatherers used this approach instinctively until it became illegal in most civilized countries. In the U.S. legal system we see it used in zero sum financial matters such as wage and hour class action cases where employers settle directly with their workforce (Chindarah v. Pick Up Stix, (2009)171 Cal App 4th 796) before the other side is aware of their action. It is also used in employment matters where offers of reemployment are offered, and in family matters particularly where children are involved.

In between the two ends of the continuum lie the bulk of processes that are primarily designed to get cases settled. Following “self help,” the parties absolutely need these two intermediate stepsbefore engaging in Mediation:

Intermediate Steps

a. Self Help – Explained above.

b. Communication – This is the part where lawyers are supposed to talk to the other side to gauge their desire for resolution. It might be a friendly exchange of data, a simple question about how their client feels about early resolution, or a firm “this case is going all the way.” In any event, some type of communication is warranted before taking the bait and going to mediation where bad news is expensive.

c. Negotiation – More often than not I am told by parties to mediation that there is no demand to settle and they have no sense of where the other party is coming from. Instead of pre-qualifying the case in advance, they use their best instincts and knowledge of the other lawyer’s leanings to surmise expectations. When they hear the first demand at the mediation that same hunter and gatherer instinct kicks in and they threaten to leave. We begin flailing to keep parties at the negotiation table. To say it is exhausting is an understatement.

d. Mediation – Trials are vetted way in advance because parties have exchanged substantial information about their case. The jury is now ready to hear the entire story and can make an informed decision on the outcome. Mediation, particularly early mediation, is often not vetted in this manner which is why it sometimes fails. That is not say that early mediation is not useful for settling cases. It’s just that our hunter and gatherer instinct forces us to ask for value that might not be present, or have more optimism in our position than we should if our case was fully vetted. How to properly appraise a case for mediation is similar to how you might vet a case for trial, but you have compressed all the time and expense into smaller arena.

e. Jury Trial (or Arbitration) – Explained above.

Here is a simple checklist when vetting a case for mediation that can be considered as a starting point that I suspect will be supplemented for by your firm.

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