In the field of legal mediation, it is common to relate an account of each party's perspective on the facts and situation of the case within a legal mediation and to an appointed mediator. The purpose of the storytelling in a mediation is to allow each party to express their opinions and feelings in an informal setting that is not afforded in a courtroom. Once both sides have verbally shared their views, the mediator then can make a decision while acknowledging both sides of the case.
The parameters are fixed and yet fluid in a mediation. Mediation most often takes place in civil litigation cases, where there was a civil disagreement between two people or organizations. Each party, both plaintiff and defendant, have the option of having an attorney present in the mediation. A time limit is set for each mediation since most mediators are either current or retired judges, and their hourly fee is quite expensive. Most mediation can vary anywhere from 2-4 hours in length with a break or two included.
Documents and evidence can be brought to settle the case and used in a mediation. An important part of mediation is that the opinion of how the case should settle that comes from the mediator is NOT binding in any way. It is simply a suggestion, a potential method to resolve the case. In most instances the opinion of the mediator is what does end up occurring, but not always. The story I will be sharing is from an article in The New York Times, and it is representative of my field of legal mediation because it describes a real life example of a mediation.
Example Story:
A few years ago more than 4,000 NFL players and their wives charged that NFL with having concealed for years and even decades what it knew about the long-term dangers of repeated hits to the head. The NFL rejected that arguments, stating they had issued warnings consistent with medical research available at the time. In 2013, the league and the lawyers representing the 4000+ players and wives met in a conference room instead of a courtroom to work to iron our their differences. A U. S. District Court Judge order a retired federal judge to serve as mediator in the case. Although not binding, the opinion and settlement bargain can be taken by the two parties involved in the case.
Analysis:
The ingredients of the story are that the two parties were willing to meet for mediation and that the judge was appointed in this instance to mediate, rather than the two parties coming to the decision themselves. The U. S. District Court Judge who was overseeing the case felt that a mediator would do the parties good, and so she ordered they mediate. Few things are quite as persuasive as a legal mandate. While the conclusion of the case is not indicated, the mediator shared his opinion and let the two parties make the decision on their own. His opinion must have been very persuasive, although it's important to note that in most cases settled neither side receives as much compensation or gives as little as they expect.
Retelling the Story:
I will vary the story by changing its audience. Rather than writing to a general audience, I will write as an attorney to one of the wives of a football player involved in the lawsuit.
As you know, playing in the NFL can be highly dangerous and risky due to the extreme head injuries that can be sustained over an extended period of time. In many cases, these injuries can leave the athletes permanently injured or incapacitated. For this reason we are pursuing legal action against the NFL, along with over 4000 other athletes and their families. The lawsuit has been taken to the mediation phase, per the order of the judge, which means we will have a chance to make a settlement. I promise you that we will not accept the settlement offer unless it will fairly compensate (though no money could) you and your family for the injuries your husband has sustained.
This variation has a much more specific target audience, and for that reason I could be more specific in the role mediation will play in the case. By taking on the role of an attorney writing to a client, you can take on a more pathetic appeal by seeking to empathize and make right the wrongs.
I like the retelling. It is really powerful brining pathos into it and making personal, emotional connections. Even if we don't even know anyone in the NFL, we can relate to having a family member or friend in a similar situation.
ReplyDeleteI think it would be especially insightful to compare how the telling of the story from the perspective of one of the parties would contrast with the mediator's rendition. He has to somehow capture the measure of both sides of the issue simultaneously so that neither side feels cheated, which would be a delicate balancing act.
ReplyDeleteMediation power!! :D Man, the way you rewrote the story really played up how the same facts can be cast in a different light for different intent. I also found it interesting how, in the example given, the mediator's only power was in persuasion: when it came down to signing documents, his clients were on their own. Truly, rhetoric is an integral piece to that career!
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