What if there was a way to settle disputes faster, confidentially, for less money, and with the potential to better preserve relationships between the parties? Enter mediation, a form of alternative dispute resolution where participants in a conflict sit down — with a third-party intermediary — and hash out possible solutions.
According to one study, up to 92 percent of cases are resolved out of court, a figure that does not include the number of lawsuits that are never filed because the parties used other dispute resolution methods at the outset. Mediation is rising in popularity as one such method, according to David A. Hoffman ’84, the John H. Watson, Jr. Lecturer on Law at Harvard.
“These skills are important for all law students, especially those interested in litigation, since the vast majority of their cases will at some point be candidates for mediation, either because the judge suggests it, the client asks about it, or the lawyer feels like it’s an important option,” says Hoffman, who has taught mediation and dispute resolution at Harvard since 2008 and is a founding member of Boston Law Collaborative (BLC).
Hoffman co-teaches the Mediation course with Audrey J. Lee ’05, a lecturer on law at Harvard and senior mediator at BLC. Lee is also a co-lead of the Harvard Mediation Intensive, a 40-hour executive education mediation program offered by the Program on Negotiation. Lee says that mediation can save money, time, and even relationships, because it can be individually tailored to the needs and desires of the parties. “A lot of people view this as a more productive way to resolve problems.”
In an interview with Harvard Law Today, Hoffman and Lee discussed the rise of alternative dispute resolution methods, what mediation offers, and why law students should learn to be good mediators.
Harvard Law Today: How is mediation used in the legal world?
Audrey Lee: Mediation is one way to resolve a dispute that is in the litigation process. Sometimes it might be introduced early on, maybe even before a formal complaint is filed in court, afterwards, or even just before a trial starts.
David Hoffman: It’s used very extensively in cases that will otherwise be decided in a court. In litigation — ranging from family business disputes and divorce to environmental and employment cases — mediation has gone, during my career, from being more the exception, to the rule. The type of litigation cases that never get mediated are the ones where there’s an issue of principle involved — for example, Brown v. Board of Education is the paradigmatic case that nobody thought should be mediated, because there was an important issue, racial segregation, that needed to be adjudicated.
Mediation is used much less in transactional work, and I think that’s because a lot of the participants, especially in corporate transactions, are already playing a mediative role. For example, investment bankers are sort of mediating between an enterprise and the investment stakeholders. However, in my view, mediation is underutilized in transactional work.
HLT: Why is mediation becoming more common?
Hoffman: A fair number of reasons. One is that in some jurisdictions, there have been delays in getting trial dates because of docket congestion. And so, courts are very supportive of mediation, and often encourage it as a way of sorting out the cases where a negotiated resolution is entirely possible. That preserves precious judicial resources for cases that need a trial.
The other impetus has to do with the costs of litigation for the litigants, as legal fees have continued to rise. Particularly in big law firms, hourly rates have reached a level that if a case can be resolved much more inexpensively in a mediation, the clients are looking in that direction, and lawyers who value the loyalty of their clients are likely to suggest it. Sometimes, ethical rules or court rules require lawyers to discuss mediation with their clients. For example, Massachusetts has a court rule that requires lawyers to certify in certain court filings that they have discussed alternative dispute resolution options with their client.
For both lawyers and clients, there’s a logic to mediation that is very compelling: you’re entrusting an independent, impartial professional with the role of being a confidential deal broker, which means that each side can talk confidentially with the mediator about their perspectives on the case and the extent to which they have flexibility. And so, the mediator acquires a lot of information through this use of shuttle diplomacy that can help everyone figure out whether there’s a zone of possible agreement.
HLT: How are the skills mediators use similar to those of a litigator?
Lee: There are some similarities between litigation work and what a mediator might do. Something that is important for both roles is understanding what’s most important to your client (or a party in mediation) — their interests. Lawyers need to identify and truly understand what their client’s interests are, the priority of those interests, and do some thinking about what is important to the other side, if there is going to be a resolution. Those are very similar skills that mediators use all the time.
HLT: How do they differ?
Lee: If you’re acting as the mediator, you’re the third party — an impartial facilitator of the negotiations. I think there is something a little bit different about inhabiting that third person role, where you’re tasked with trying to figure out what the interests or the needs are for both sides, exploring the differing experiences of both sides.
The types of cases I handle most often these days are early disputes in an organization or workplace, perhaps before there’s been a formal complaint. These cases look a little different from cases where there has already been discovery and lawyers have already been extensively involved.
Hoffman: One thing that’s beginning to happen in the legal profession is that there are some lawyers who are carving out a specialty in alternative dispute resolution. It’s not a widespread phenomenon, but it’s definitely increasing. And it’s a little bit like the distinction between solicitors and barristers in the British legal system. For example, in the United States and throughout the world, we now have the development of collaborative law, which is a process in which the lawyers on both sides agree in advance that they are in the case only for negotiation, and they’ll withdraw and hand the case over to litigators if it needs to go to court. We still need skilled litigators, of course, because there are certain cases that resist settlement, or where an issue of principle has to be decided, or where a decision could affect parties and stakeholders who are not involved in the case, such as with a patent.
HLT: Your course is centered around role playing to practice being both a mediator and an advocate. Why the emphasis on hands-on learning?
Hoffman: Oscar Wilde once said that anything truly worth knowing cannot be taught. However, it can be learned. And learning by experience is one of the most powerful ways to absorb the material that Audrey and I share with the students about the theory of mediation. Until students actually put the theory and the skills to work in simulated mediations of actual cases, the learning doesn’t become muscle memory. This is also true with the skills needed to be effective as an advocate in mediation, which is, of course, what many of the Harvard Law School students may find themselves doing even in their early years of practice.
HLT: We all know that tensions can run high between parties to a conflict. How do you keep the mediation process positive and productive?
Lee: Built into this question might be some ideas about how people in everyday situations typically try to approach tense situations: often by trying to defuse them. It might seem counterintuitive at first, but in mediation, we teach that instead of running away from strong emotions, we need to acknowledge them, to try to work through those moments, to acknowledge that it’s a difficult conversation and that there might be things said that are incredibly hard to hear.
Sometimes in mediation, the mediator is speaking and working with everyone at the same time, and we call that a joint session. Sometimes the mediators meet privately or one-on-one with a party and their lawyer, if there is a lawyer participating. These different methods can also impact how comfortable the parties feel in being open with what they are thinking.
Hoffman: One of the tools that mediators use is to work with parties on designing a process that fits the specifics of the case. Frank E.A. Sander ’52, who first started teaching mediation at Harvard Law School in 1981, co-wrote an article called “Fitting the Forum to the Fuss.” That means not just deciding whether what the case needs is a courtroom or arbitration, mediation, or some other process, but even within mediation, fitting the forum of the mediation to the specifics of the case.
For example, consider a situation where business partners are having a falling out, but would like to stay in business together, or an employment situation where an employee is thinking about leaving, but the company wants them to continue. In those kinds of cases where a relationship needs to be repaired, very often mediators will suggest that the parties meet together with the mediator refereeing the conversation. But in cases where there either never was a relationship (such as an auto accident or other tort case), or the relationship is completely broken, the mediator might recommend shuttle diplomacy as more appropriate. With shuttle diplomacy, where the mediator meets each side separately, the parties don’t have to be quite as careful not to hurt the feelings of the other side or say something that the other side might view as offensive.
HLT: Can people who are very different from one another — such as those from different cultural backgrounds, for example — nonetheless have a successful mediation experience?
Hoffman: Absolutely — it happens all the time. There are certain kinds of diversity that are present in pretty much every case. And even people who may come from the same ethnic or cultural background, there may be differences of gender, age, disability, education, class, etc. And part of the mediator’s job is to translate, because everyone has their own perspectives. And even if parties don’t reach common perspectives, they can agree to put their different perspectives aside, because there’s a resolution available that serves their interests better than the alternative, which is going to court.
Lee: In many of my cases, there is a clear difference in power: for example, one person is the supervisor, and one person is the direct report. As mediators, we can be helpful in trying to set up a space for conversation that can be comfortable and productive for both people.
Before the first session, I’ll have spoken privately with each side, in a pre-mediation conversation, to introduce myself and learn what’s most important to them, and also, what they might need to be able to fully participate. I also find it helpful to share a few discussion questions in advance, so that each side can think about what they want out of the conversation or mediation. And likewise, what might be something that the other party might not know that might be important for them to learn. And then, I try to be mindful of things that each of them may have shared with me that might be helpful for them as they’re trying to come into this space and fully participate.
HLT: Story time! Have either of you led a particularly memorable mediation?
Hoffman: One of the cases that comes to mind involved a whistleblower. He had been terminated by a big company, and he claimed that the reason he was terminated was that he had been complaining about ethics violations by the company. Each time the employee had raised an issue about ethical problems, the company had referred it to the corporation’s ethics committee, and the complaint occasionally went all the way up to the board of directors. But each time, the answer was ‘this is not an ethics violation.’ The employee found that very frustrating, but the company also found it very frustrating to have this employee coming at them with repeated claims of ethics issues that turned out not to be. They put him on notice, but he continued to file ethics complaints, and they fired him.
In the mediation, the parties were very far apart in terms of the dollar amount that was being sought by the fired employee, who was alleging that his termination was legally actionable as a violation of public policy. I was meeting separately with the employee, and I had a copy of his resume. I noticed that he had served 20 years in the U.S. Army, and that those years coincided with the war in Vietnam. Simply to get to know him better, I said, ‘I see that you were in the army for 20 years. I’m curious, what was what was it like for you to serve in the military?’ And he gave me a wonderful answer. He talked about how he really felt great about his military service, and he said, ‘Unlike this company, where it seems like anything goes, we had rules in the military, people had to turn square corners. People had your back.’
And as he spoke with such animation, enthusiasm, and appreciation for the environment that he was in prior to going into the private sector, I could see the proverbial light bulb lighting up over his head. And he said, ‘You know, I think that when I went to work in the corporate sector, I was in the wrong place. I am probably a much better suited for an environment that is more rule-bound where there are rules, and not so many gray areas.’ And with that realization, we were able to quickly settle the case, because what he realized was that while he thought that he was fighting for truth and justice, maybe this was not the arena in which that fight was going to be successful. That transformative moment came not because I knew what the answer to my question to him was going to be, but just because I brought to the table the kind of curiosity that Audrey and I encourage in our students. By asking lots of questions and getting to know people better, we help them find their way toward a resolution.
Lee: My story involves two colleagues in an organization who were in a reporting relationship. One person, the direct report, accused the other person, her manager, of saying something racist toward her. As a result of this, they were not able to work together at all. The situation was very tense and difficult. I ended up meeting with them a few times over the course of several months, which is a little unusual for a typical workplace case. Initially, the types of agreements that that they came up with together involved things that might seem trivial, but that were critical, I think, in reestablishing trust. And so after the first one or two meetings together, there were some specific agreements about how and when they would meet together, what would be discussed, and also agreements about how they would engage in future difficult conversations together.
At the end of our work together, I could not believe the turnaround in terms of how they were engaging and seeing each other. It got to a point where they had so much mutual regard that they were making jokes together and expressing their support and appreciation for one another. It was one of those amazing mediation experiences where the two people come out of it not only able to reconcile differences, but with a transformed relationship.
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