Mediation Justice

I was just explaining THE AMERICAN SYSTEM OF JUSTICE to the parties engaged in a fabric-design copyright infringement action yesterday.

Though this is the second fabric-design mediation I've conducted this year, I hadn't actually litigated the issue since the late '80s when I was briefly part of the Guess/Jordache litigation.

So I cruised Susan Scafidi's Couture in Court column beforehand for a quick law review.

(Thanks Susan! It helped a lot and I ordered your book Who Owns Culture, partially to repay your unintended favor but mostly because I need some meaty reading in the area).

In Susan's recent Counterfeit Chic post Name 'Em and Shame 'Em, she notes,

Legal systems are predicated on the basic idea that dispute resolution and the righting of wrongs is better achieved through peaceful adjudication than, say, punching the other guy in the nose. The downside is that the ostensibly civilized path to justice can be an expensive and time-consuming one, and not every ethical wrong is as yet protected by a legal right.

Though Susan goes on to talk about the power of on-line shaming as a self-help remedy for the theft of non-profit organizations' T-shirt designs (that is shameful!) the quote above caught my eye because it is nearly the verbatim rap I give to parties when impasse is driven by injustice.

You don't often hear this. Because everyone's more interested in maximizing their take away. So lawyers and mediators talk to one another about distributive and integrative bargaining. BATNA's and WATNA's and Zones of Potential Agreement. Making first offers. Anchoring and "winning" the negotiation.

But when we really get down to it, we're always talking about just one thing: JUSTICE.

What Mediators Really Do

Let me explain again what mediators actually do.

First, we believe everyone's story. Whatever the "true facts" (an oxymoron) by the time the mediation occurs, all of the parties feel that they're the victims of an injustice. All of them. Always. The adversarial system is rough on people. Very rough.

(right: Charlie Chapin from Modern Times: this is the image that always comes to mind when parties tell me they feel abused or mistreated by the justice system).

So we make an effort to help the lawyers help the parties extricate themselves from the law's gears and levers. I'm not knocking it. I spent 25 years practicing it. And it should be more efficient and cost-effective. Somebody should be working on that.

When the lawyers and their clients come to me, however, they're usually ready to take the problem back into their own hands. By that time, the business problem that started the litigation has often become dwarfed and contorted by legal theory.

And the parties never understand legal theory. Never. Nor do they wish to.

The parties, do, however, understand the basic concepts of fairness ("justice") that they learned in kindergarten. If Timmy stole your crayons, he ought to give them back. You shouldn't have to lob a scud missile across the playground to get them. The teacher should be fair and impartial. In the best of all playground worlds, the teacher should find out why Timmy stole your crayons in the first place, or try to understand why you're pretending he did when all the facts begin to line up around the proposition that the crayons belong to Sharon, not you or Timmy after all.

There's no simple right and wrong here. Life is more textured and nuanced than that. There's need and belief. There are prior unresolved disputes -- like the last time you had a fight with Timmy. The time he did take your crayons and then flushed them down the toilet and the teacher got mad because the plumber had to come and fix it.

Still, you think that any crayons Timmy has by all rights should be considered yours. But teacher has been explaining that the law doesn't work like that so you've tailored your recollection to fit the law because that appears to be the only way for you to get a fair result.

Back to Mediation

OK.

So I know the law and I learn the facts and I listen to the parties' legal positions. But underneath all of that talk is the steady thrum of anger and frustration. Fear and growing hopelessness. And with those completely rational emotional responses, a growing distrust of the "teacher" who was supposed to set things right again.

We're adults now and we're not talking about crayons. We're talking about our businesses. Our life's blood. Our creative efforts. And we (the clients) want to take the whole thing back because the justice system isn't working for us.

It's not about the intricacies of the law. It's not even about the expense of litigation or the uncertainty inherent in throwing your fate to the winds of a jury trial.

It's about a fair result. It's about a fair process. It's about justice.

No one wants to do anything at the point of a gun.

If litigation, and the threat of trial, is the gun, someone has to tell the parties to put the thing down and back slowly away from it.

Take a deep breath, find the center of the problem again.

Then negotiate a just result.