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William Wray is a 3L at Roger Williams Law. He attended Georgetown University and Brown University for undergraduate, graduating in 2010 with a degree in Middle East Studies. Throughout high school and college he was involved in Mock Trial, which kindled his interest in litigation. At Brown he...



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Mediation Competition - supposedly not an oxymoron.

Posted by William Wray on 03/01/2011 at 11:10 AM

I'm off to Newark this Friday for a 'Representation in Mediation' competition. Newark probably wouldn't be my top destination city, but I have heard it's a lot like New York. Phonetically.

 

Important ways in which it differs:

 

1. Its streets are not what dreams are made of;

2. there is much that you can't do.

 

Mediation is a form of Alternative dispute resolution (ADR), which is a fancy way of saying “anything that costs less than court.” Mediation makes a lot of sense for most clients, but less so for many lawyers. Lawyers are prone to seek out weaknesses in the other side's argument, to go for the jugular. Any scrap of information the adversary discloses will be scrutinized, and, if at all possible, used to destroy or embarrass the adversary.

 

E.g., in one of the competition's problems, a young doctor may be parting ways with his employer-mentor. At the essence of the problem is a mutually beneficial relationship that both parties would prefer to patch up. There are some legal complications, however, that could either be cleared up at trial ($$$), or in the mediation room ($).

 

[It's around here that I'd normally insert a picture or a comic at least tangentially related to the subject matter of the post. Unfortunately my google search for mediation cartoons resulted only in 1) painfully earnest flow charts and diagrams explaining the mediation process, 2) painfully unfunny comics written for mediators that express graphically - and purportedly humorously - that the disputing parties are at odds, and 3) one comic whose pretentiousness (it would deign only to give a light whiff of funny) suggests a "New Yorker" parentage.]

 

In the mediation room we will have: 1) a bona fide mediator, 2) an RW student playing a client, 3) an RW student playing a lawyer, and 4) another school's student playing a client, and 5) another school's student playing a lawyer.

 

When non-lawyers speak directly to each other, morsels of information that leave lawyers salivating – apologies, oblique confessions of fault, narratives, explanations – are necessarily forthcoming. Generally, the more each side opens up to the other, the greater the likelihood that there will be a pre-trial resolution. However, there's always the risk the adversarial party simply gathers up the juicy morsels and walks away, putting the sincere party at a marked disadvantage when the trial comes.

 

Mediation with lawyers in the room is comparable to two farmers brainstorming how to build a hen coop, but the blueprints are being drawn up by the foxes. But in the competition contest, there will be only foxes (albeit nascent ones). Keeping the interaction genuine, while simultaneously trying to get the upper hand, will be a challenge.