Mediation – Huh? What is it good for? …
Alright, how about a combination rant and actual posting on something substantive? Let’s give ‘er a go.
I’m about to date myself. For those of you old enough to remember the old song by The Temptations called “War”, (subsequently done by, notably, Edwin Starr, and by Bruce Springsteen and by Frankie Goes to Hollywood and others – does anyone remember the cover by the punk band D.O.A. from the days when I still had hair and wore Doc Martens? Ah, the memories, The Sex Pistols, The Dead Kennedys, but I digress … please, don’t bother with the cat-calls of “sell out” or “poser” or something similar, been there, heard that, long story without an interesting ending so save your breath), the lines were “War. Huh. Good God y’all. What is it good for? Absolutely nothin. Say it again…’”. Can the same be said about mediation? Maybe.
I attended a seminar years ago when the speaker asked a series of questions. He asked who had positive experiences with mediation. About half of the people put up their hands. Then he asked those of us who didn’t put up their hands a further series of questions and eventually whittled us down to myself and a few others. We had basically answered the questions to show that we had no good experiences with mediation and that it was a complete and total waste of our times (that is, bollocks), at least in our opinions. He then turned to us and said “you do collection work for lenders or banks, right?” And he was right – if you really want to know why, I’ll put it in a separate post later (long story, nothing particularly funny nor interesting to the story).
I was reminded of this as I read an article this evening expounding upon the values of mediation and the Harvard Negotiation Project. I snorted as I read the article. It reminded me of when I was doing my Masters of Law degree at Osgoode Hall Law School. At the time there was a competition between Osgoode and the University of Toronto Law School in which various teams tried to resolve their differences on fictional disputes. Osgoode, being the “kinder and gentler” group (of wimps) that they were, followed the Harvard Negotiation Project – and, to their credit (I supppose) they followed it perfectly. And they proceeded to get their rear ends kicked from one end of the room to the other.
The Harvard Negotiation Project is a well-known procedure by which the parties put interests above positions. The goal is conflict resolution and seeking some sort of “middle ground”. If you want to read more about the concept, it is wonderfully set out in the book “Getting to Yes” by Roger Risher and William Ury – which I happened to look at on my bookshelf this evening and snorted at in disapproval. In THEORY, this is wonderful because it presupposes that both sides are truly looking to find some way to resolve their dispute. In PRACTICE, it is (I’ll put it extremely politely), a bunch of malarky.
At the competition between Osgoode and UofT, the UofT students proceeded to kick the Osgoode students’ butts because the Uof T students simply dug their heels in and said “come to us”. Think of it this way. If you are at point 0 and I am at point 10 and we are trying to resolve a dispute, eventually you will move from 0 to 5 and I will move from 10 to 5 and we will meet in the middle at 5. But if I take the position of “to heck with you, I’m not budging”, then in order for a resolution to be achieved, not only do you have to move from 0 to 5, but you have to move beyond 5 and perhaps towards 7 or even 8. If you move 8 and I move 2, who is the winner? Me. Just the same way that the UofT students all those years ago said “we’re not budging” and forced the Osgoode students to come meet them near the UofT students’ original positions.
The “interest-based” negotiation theory misses one key rule: the Golden Rule – he who has the gold makes the rules. This rule works two ways. The first is that if I have more money for legal fees than you do, I’ll do everything in my power to drag you down and make this expensive for you because I can afford the legal fees better than you can so eventually you will cry “uncle” before I do. The second, which is really the flip-side of the first, is ”I can make you spend more on legal fees than I will ever have to spend” and I’ll make you cry “uncle” that way. I watched as my ex-[insert whatever epithet you wish] sister-in-law pulled this on my brother because she was able to get Legal Aid and he could not. (I could only do so much because I don’t practice family law and he’s in Alberta and I’m in Ontario.) I also see it all the time in my practice – I recently had a client settle a perfectly valid lawsuit because he sued a self-represented person who was going to turn the lawsuit into a total circus and the cost no longer justified the lawsuit. In either situation, the one party doesn’t give a tinker’s darn (again, being polite) about the issues or with trying to resolve the dispute. Rather, the goal is to force the other side to capitulate to the economic reality of the situation.
And so, ultimately, the question that has to be asked is whether the parties truly wish to settle this matter. If they do, then the Harvard Negotiation Project (and, thus, mediation) is a wonderful model. But if you have some sort of leverage in the situation, why would you ever want to settle? Unless there is some other factor (economic, personal or otherwise), I would say that there is no reason why you would ever want to and, if nothing else, you would want to “run a bluff” and “make them come to you” like UofT did to Osgoode.
Unless there is some reason for you to find a middle ground, the song surely sounds like “Mediation. Huh. Good God y’all. What is it good for? Absolutely nothing. Stick to your guns!”
As the saying goes, sometimes, nice guys (like the Osgoode students) finish last.
Something to think about.
CALC