Wednesday, May 30, 2007

Let's Make a Deal

I participated in a mediation meeting on Tuesday for some personal litigation. It's a funny little lawyer dance that, when well choreographed, can almost substitute for entertainment, given the rather limited range of the legal aesthetic.

At the center is the Mediator, generally a former lawyer with gray-haired credibility and the demeanor of a friendly uncle. He is hired by both sides and his job is to get the two parties to settle. (I asked ours if he "kept score," and he somewhat reluctantly admitted he did. I'm guessing he can compute his batting average quicker than a rookie outfielder standing on first base.) To be successful, a Mediator must be a master of both legal reasoning and litigant psychology. His prospects are significantly enhanced if each side thinks he favors its cause.

After starting with a little background, establishing a rapport, and giving a short-hand assessment of our case, he split us up in separate rooms and proceeded to move back and forth, shuttling offers and counter-offers, always coupled with friendly counsel, sage advice and "inside information," leading almost inexorably to a settlement. After a few of these dosey-dos, each side moving gradually together, we arrived somewhere near the middle, signed a few papers, pledged not to kiss and tell, and went home, relieved if not completely satisfied.

I like the idea of mediation. It skirts the courts and seeks agreement in a contentious environment. And it seems to me that in a world of perfect information--each side being rational and appropriately assessing the risks--you should almost always find a place to settle. It's simply more efficient--you avoid the time and legal expense of a trial. So I was happy to reach an agreement, but happier yet that this somewhat homespun system really worked, that we had managed to avoid the waste and formality and contentiousness of endless litigation.

I think a Mediator would be useful in other parts of life. Like maybe for Congress, or for families with teenagers, or perhaps in the Middle East. I've always had an idealist streak in me, but now that I've seen The Middle, I think it is a good place to meet.

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