A Modest Proposal

When Jonathan Swift wrote his modest proposal, it had to do with eating our young as a hedge against a bad economy. You know, fewer mouths to be fed, less hunger for the lucky ones. FYI – Swift was a satirist.

I’ve got no satirical purpose in my modest proposal and contrary to eating our young, it is about learning from our young. Last night was the final class meeting of my Negotiation section at Boston University School of Law for the Spring term, and we had a mediation exercise that involved all 20 of my students – four teams each consisting of a mediator, 2 lawyers and 2 clients. The interesting thing about my class is that none of the students is from the United States – each is a young lawyer from another part of the world -- China, Peru, Saudi Arabia, Singapore, Taiwan, Qatar, and Belgium – enrolled in BU’s LLM in American Law program.

That my students are not from here means, among other things, that their notion of what being a lawyer is doesn’t reflect American television and movie heroes and anti-heroes – no LA Law, Boston Legal, Judd for the Defense or Perry Mason. In their cultures, a lawyer is a consensus-builder, a servant of the client and a force for community harmony. Facilitating co-existence is more important, certainly in eastern culture, than dominance.

How my students demonstrated their cultural values in our mediation exercise was the most interesting part of the exercise, for me, at least. Very conciliatory opening statements without bravado or chest-thumping; low-key, almost subservient role for lawyers with deference to clients; and here’s the most fascinating part – almost no private caucuses. Virtually all communication took place in a fishbowl; no one left the room, offers were exchanged on sheets of papers through the mediator, and respect ruled the day. Yes, lawyer and client still had occasional private conversations outside of the hearing of the others, but the conversations were short and to the point. And, yes, if the mediator spoke privately with one side or the other, her discussions were likewise short and to the point.

It was not only different cultural norms that kept this mediation exercise from becoming an episode of yet another legal drama, it was also the significant amount of pre-mediation preparation that the mediators put into the exercise. Before the exercise began, they met with both sides separately, heard them out, established trust and were ready to get down to business when the actual mediation convened.

Of course, one of the aspects of our exercise that was different from real-life was the both sides wanted to settle their differences. Too often in my mediation practice (and in my litigation practice before that) I see lawyers and clients wanting to exert their will over the other side in a struggle of whose legal rights are stronger than the other’s. This approach is time-consuming at best, and settlement-killing at worst, before it runs its course and the parties get down to the business of resolution. As we all know, sometimes, the business of resolution doesn’t begin in earnest until participants announce the departure time of their plane or start to pack their bags in a show of bravado. To many, the hours spent in caucus with the mediator complaining about the other side and proclaiming one’s own earnestness are a necessary part of the mediation dance. It’s how I show my client that I am really on its side, say the lawyers. It’s how I show the mediator that I really am right, say the clients.

So, here’s my modest proposal. Let’s recognize mediation for what it really is – an earnest attempt to resolve a dispute, influenced, perhaps, by the parties’ history but primarily fueled by a joint recognition that the future for all will improve if we can put this dispute in the past. We get to the business of resolution without it taking hours going over old ground; that we empower the mediator to work meaningfully with each participant before the mediation begins to visit the past, defuse emotion and to hear them out; that when we get together we stay in joint session and only talk resolution, and not about who’s right or wrong. Less posturing, more cooperating. And, in the end, if it doesn’t work, as Swift suggests, we can always eat our young or, at least, the mediator. FYI – only kidding.

ALP