Mediation in Everyday Practice and the Sword of Solomon
By Dean D. Stein, CMA
Some attorney's might feel that “mediation” is something wholly different and distinct from their practice of everyday law. I feel that mediation lies at the heart of good lawyers. In most things in life, you need to look at the “bottom line”. Some might express it by saying, “you don't want to win the battle, and lose the war”. But winning the battle and losing the war is how many people approach their legal issues. A good practioner, should guide you through a cost/benefit analysis. Many times, clients will call me, with problems, that at their “bottom line” are $500 issues. In our expensive and time consuming legal profession, you must ask yourself, do I want to spend $1,000, the time and the aggravation, to obtain satisfaction in the form of $500? Put that way, I am glad to say, most prospective clients say “no” and thank me for my time.
Mediation, as a process, is defined by Black's Law Dictionary as “Private, informal dispute resolution process in which a neutral third person, the mediator, helps disputing parties to reach an agreement”. I think attorney's can, and should apply both the cost/benefit analysis discussed above to their client's situation, as well as think like a mediator, a negotiator, a master settlor of disputes. When you go to court, you can get into what I call “Forrest Gump Law”. Put in Forrest's own words, which I have quoted many a time, “Life, (or in this case, court), is like a box of chocolates, you never know what you are going to get”. And that is the truth. Think of it this way, when you are negotiating, you have some control on the ultimate outcome. That is, you go back and forth trying to structure a deal, with each party giving up something, but both parties getting something. When you go to Court, your ability to impact the situation is now gone. You are a taker of results, and the results you are given, may be much less satisfying then the ones you could have gotten through negotiation. You may get all, some, or none of what you wanted.
This is not to say that no lawsuits should be filed or litigated. Cases often must be litigated, and the litigation process can provide the necessary structure that leads to a negotiated settlement, before a trial on the matter ever takes place. Looking objectively at both sides positions, their strengths and weaknesses, and then structuring a proposed settlement to open a dialogue with the other party, should immediately be on the mind of the attorney on both sides. The process should be approached to save client's money, time and unnecessary aggravation.
One of the most famous stories of all time, that deals with wisdom, justice and yes, even mediation, is the story of Solomon's Sword, reprinted below from the King James version. Take a minute to refresh your memory of how the parties revealed themselves in that process and how true wisdom can come to bear on the most seemingly difficult and intransigent disputes.
16Then came there two women, that were harlots, unto the king, and stood before him.
17And the one woman said, O my lord, I and this woman dwell in one house; and I was delivered of a child with her in the house.
18And it came to pass the third day after that I was delivered, that this woman was delivered also: and we were together; there was no stranger with us in the house, save we two in the house.
19And this woman's child died in the night; because she overlaid it.
20And she arose at midnight, and took my son from beside me, while thine handmaid slept, and laid it in her bosom, and laid her dead child in my bosom.
21And when I rose in the morning to give my child suck, behold, it was dead: but when I had considered it in the morning, behold, it was not my son, which I did bear.
22And the other woman said, Nay; but the living is my son, and the dead is thy son. And this said, No; but the dead is thy son, and the living is my son. Thus they spake before the king.
23Then said the king, The one saith, This is my son that liveth, and thy son is the dead: and the other saith, Nay; but thy son is the dead, and my son is the living.
24And the king said, Bring me a sword. And they brought a sword before the king.
25And the king said, Divide the living child in two, and give half to the one, and half to the other.
26Then spake the woman whose the living child was unto the king, for her bowels yearned upon her son, and she said, O my lord, give her the living child, and in no wise slay it. But the other said, Let it be neither mine nor thine, but divide it.
27Then the king answered and said, Give her the living child, and in no wise slay it: she is the mother thereof.
28And all Israel heard of the judgment which the king had judged; and they feared the king: for they saw that the wisdom of God was in him, to do judgment.
Dean Stein, CMA, is an attorney who has a Masters degree in business and is a Certified Management Accountant (CMA).