Mediation Principles: An Environmental Case History

Article excerpt

The effectiveness of mediation is so widely recognized, it is not surprising that some of its principles have taken root in the legal field and other areas. In this article, Edward Selig imparts important lessons derived from his own "mediative practice of law." Using a case study, he shows how opposing lawyers and their clients applied some key principles and techniques of mediation to settle a dispute successfully without the services of a mediator. If you're a disputant, how would you know if you could benefit from Selig's cooperative style of dispute resolution? He outlines 11 conditions to help you decide.

In representing parties to a dispute, lawyers may incline toward either of two poles: the confrontational or the cooperative. Most lawyers mix these styles in varying proportions as the dynamics of particular cases may warrant, and there is no behavioral recipe for assuring effective representation of the client in all cases.

This article posits, however, that the best results for all parties may be obtained when opposing lawyers and their clients adopt and model a cooperative style in dealing with one another. In such cases, they may not merely settle the dispute (as most cases somehow do before trial), but settle it on terms that afford substantially greater benefits for each party than any of them, including the successful plaintiff or defendant, could ever have obtained by judicial decree. Thus the cooperative style may achieve the functional equivalent of mediation without having to retain an independent mediator. This conclusion grows out of the author's own experience in the mediative practice of law, an example of which is discussed at length below.

With or without a mediator, the cooperative approach has its best chance of resulting in Pareto-optimal settlements,1 at least of two-party disputes, when most (if not all) of the following conditions are met:

1. Despite conflicting interests, the parties recognize that they also share a problem of some urgency which, if not promptly resolved, may have adverse consequences for them all.

2. Despite differences of perspective, the parties communicate easily with one another. No psychological problems or hidden motivations stunt or disturb the flow of communication.

3. The critical facts of the situation are known to both parties or can be clarified by inquiries that both are willing to undertake with the understanding that newly developed information will be shared.

4. The parties and their attorneys are genuinely interested in possibilities of settlement without the distractions of posturing or jockeying for strategic advantage.

5. Neither party is able or "willing to exercise overwhelming power or influence in the negotiations to force a decision in his or her favor."2

6. Each party understands the other's arguments and interests, and neither party is willing to risk the possibility of a judgment adverse to it in a court of law.3

7. The parties differ in their respective evaluations of particular matters that need to be resolved in the context of the dispute, thus opening up possibilities of tradeoff.4

8. Objectively based criteria can be identified on which to build a settlement.

9. The dialogue of negotiation discovers win/ win possibilities via "expansion of the resource to be traded."5

10. The parties may have an actual or potential relationship that each perceives as worth maintaining or cultivating.

11. Both parties are willing to coordinate their actions in order to implement win/win solutions.

In the following case history, which illustrates all of the above conditions, names have been fictionalized to preserve confidentiality and numbers have been rounded for ease of presentation. With these exceptions, the case unfolded essentially as here described.

Case History

Manasseh Pulp & Paper Company ("Manasseh") owned for many years a dam across the Kiawassee River in Ohio. …