Occasionally, litigation can be a “bet the farm” proposition. An attorney representing such a client should find that out before taking on the case. A mediator should also determine the parties’ financial situations as early as possible. Some litigants have nothing to lose in litigation (because they have nothing to start with). Others have everything to lose. Some are looking for vindication. In any case, everyone should keep in mind that the courts have the last word not because they are always right. Rather, they are right because the have the last word. (If anyone can find or remember who first said that, please let me know.)

In a civil society, we all must agree that if we cannot resolve our disputes by ourselves, the courts will do it for us. The alternative is the law of the jungle; survival of the fittest; might, not necessarily right. So, even if the dispute is personal, litigants would do well to learn what attorneys are trained to do:  shake hands and learn to live and fight another day.

The first comes from FINRA’s current newsletter. (You don’t have to be FINRA arbitrator or mediator to subscribe.) The article contains nine tips for a successful mediation. One of those tips is to “be prepared,” but following all of the other tips is the best preparation.

The other article comes from the ABA and discusses 10 things lawyers love and hate about mediators. According to the author, one of the things lawyers love is when mediators prepare beforehand. Seems obvious, but again the other items listed in the article provide fertile ground for preparation by a mediator.

If you are a mediator and have any favorite lists that help you prepare for a mediation session, please leave a comment and let me and my readers know what they are.

Of course, many business disputes, especially between partners, can be avoided with carefully worded contracts, partnership agreements or corporate documents. Unfortunately, in the recent cases I have mediated, the contracts and other documents were not carefully worded. In some instances, they were non-existent or, at best, inartfully drafted. Maybe the parties did not feel the need for written agreements, or maybe they were too cheap to pay attorneys to draft them. But I suspect that well-drafted legal documents would have come in handy when it came time to end the relationships or resolve disputes. In the absence of such documentation, the litigation became a he said/she said affair. And the mediation boiled down to “give me what I want” or “accept what I am offering” or else I’ll file for bankruptcy.

A transactional or business attorney’s best marketing tool is to tell a client to “pay me now or pay the litigators later.” In the cases I have seen, parties who scrimped on business planning and documentation have gotten what they paid for. Trouble.

The discussion soon focused on problems that arise at school that can turn children off to education, like bad teachers and bullies. What is a parent to do? How involved do they need to be? What lesson should parents give children to prepare them for obstacles at school? The answer was a pleasant surprise to me. In an age where some parents are too uninvolved and others are over-involved (so-called “helicopter parents” who hover over their children), I expected to hear something about finding the middle ground or happy medium. Instead, what I heard was elegantly simple: “Work it out!” The participants in this discussion did not urge parents to monitor every problem, call school to complain about bad teachers or bullies, or help their children out of every difficulty. Rather, they urged parents to tell their children that problems and conflicts will occur, and children must be prepared to work it out and resolve the problems themselves. Of course, this requires children to know how to stand up for themselves and be their own advocates, without resorting to violence. This is something both teachers and parents should help children do. It is a skill that will help them throughout their lives. Sometimes, they will be able to do it themselves and other times they will not. But if they try, they will at least learn when they need to seek help and who to seek it from.

This discussion should be required material in business schools. I have seen people turn their business problems over to lawyers and tell them to “handle it,” when the parties themselves could have worked it out more efficiently if they knew how to communicate and advocate for themselves effectively. Fortunately, many attorneys are skilled negotiators and advocates in and out of the courtroom. But it certainly makes the attorney’s job easier if the client is also involved in and adept at the process. That is a skill that can and should be learned in school. When parties in dispute cannot get the other side’s attention or have trouble focusing on the issues, that is when attorneys or mediators need to be called in. And then it is time for everyone to go back to school and find a way to work it out.

In my mediation training, we were taught to try to restate participants’ concerns in other words, showing both concern and understanding. However, even when all the parties are speaking the same language, this technique runs the risk of misstating or oversimplifying a participant’s concerns or interests. This does not mean that a mediator should not try to restate the concerns and interests. Rather, the mediator must understand that the opposing sides in a dispute frequently have different understandings of the facts based upon their own narrative. Even when speaking the same language, something can be lost in translation. As George Bernard Shaw noted, “England and America are two countries separated by a common language.” Similarly, business partners, competitors, buyers and sellers, and even spouses can speak in jargon or terms that are unfamiliar to others. Sometimes, this is what causes the dispute or conflict. Finding common ground requires the parties to be speaking the same language and understanding each other’s terminology.

In one recent mediation, the participants were arguing about whether a computerized system was defective. One party referred to a pass code. The other said there was no such thing, but there was a registration key. Ultimately, it appeared they were talking about the same thing but they thought it was different. Helping them realize what the other was talking about, even in the same language, became my most difficult challenge. Without a mediator, they might never have reached an agreement. I’m not bilingual, but it seems I can help translate English to English.

Meanwhile, our nation’s capital seems to be filled with those who are certain that they know what the future holds and what is best for the country. The problem is that at least two groups are so certain, and their proposed policies are mutually exclusive. One side believes we can reduce our deficit (if not balance the budget) strictly by making cuts in expenditures. The other believes that both expenditure cuts and revenue increases are necessary. No one believes that Congress and the President will risk ruining the nation’s credit rating by defaulting on the national debt, but they are playing a dangerous game of chicken. Someone has to blink.

In litigation, many cases settle on the courthouse steps, with a jury in the box, ready to decide the case. These last minute settlements frequently occur because one side finally realizes a flaw in its case or a mistake in assessing the risk of an adverse decision. Settlements made under such circumstances are rarely favorable to the panicked party. Such outcomes are bad enough when they involve private parties involved in civil litigation. They can be catastrophic when the nation’s finances and economy are at stake.

Unfortunately, no independent, impartial mediator appears to be ready and able to save our elected leaders from themselves. The President cannot be mediator-in-chief because he, too, is a politician with a dog in the fight. We can only hope that the impending debt ceiling deadline provides the necessary reality check that brings the warring factions to their senses and produces a solution we can all live with.

I don’t know if the jurors made the right decision in this case, but they certainly had a better view of the evidence and witnesses than I did. They were clearly a jury of Casey’s peers. They were also peers of the police and prosecutors. Some of them were parents of children like Caylee. They represented their community and performed their duty well. So I am not going to second-guess their decision.

The Sixth and Seventh Amendments to the U.S. Constitution preserve our right to trial by jury. While jurors’ decisions may be unpredictable, that is precisely what gives us good reason to search for our own collaborative and consensual solutions to disputes. Our founding fathers sought independence, not predictability. I hope that is what everyone was celebrating this past 4th of July weekend. I know I was.

This topic is important in understanding how people make decisions and why disputes and conflict arise. Perhaps this is one of the reasons many people perceive an increase polarization and hostility in recent public discourse. When the information you receive on the internet is tailored to complement your previous disposition, you are less able and likely to see the other side’s point of view.

In dispute and conflict resolution, it is sometimes necessary to pop a person’s “information cocoon” to help him or her understand the other side’s position and the risks of continuing the conflict. Mediators often must test a participant’s underlying presumptions by engaging in “reality checks.” Another way to think about this process is to pop the information cocoon. Where are the parties to the dispute getting their information? Are they familiar with the other side’s sources? If not, it may be worth their time to take a look. 

Good litigators must know the other side’s case as well as their own. Good negotiators must be similarly prepared. If internet search engines and social media are making that more difficult, we must be aware of it and be prepared to deal with it. Removing the filters from our search engines would be a good start toward diversifying our information sources. Mediators should be prepared to point out this problem to parties in dispute in order to help pop their information cocoons.

This inspired me to think of how many times I have seen people in dispute draw lines in the sand that they dare not cross.  Once their positions are fixed, it is difficult to get disputing parties to move.  The cartoonist was able to illustrate how the line might not be a barrier.  Rather, it might be an invitation to explore opportunity. 

Another mediator blogger recently pointed out that 4 year olds can be taught to “do conflict resolution.”  Perhaps we have found a way to make childishness a good thing.  When adults draw lines in the sand, it might be better if they think like 4 year olds or the children in the comic strip. I am going to keep copies of this comic and blog in my mediation binder.  I’ll report to you as soon as I have an opportunity to use them.

But a closer look at the decision reveals that such immunity does not come without price.  In this case, AT&T Mobility’s cellular phone sale and servicing agreement provided that customers could initiate dispute proceedings by completing a one-page Notice of Dispute form available on AT&T’s Web site.  If the dispute is not resolved within 30 days, the customer can invoke arbitration by filing a separate Demand for Arbitration, also available on AT&T’s Web site.  In the event the parties proceed to arbitration, the agreement specifies that AT&T must pay all costs for nonfrivolous claims; that arbitration must take place in the county in which the customer is billed; that, for claims of $10,000 or less, the customer may choose whether the arbitration proceeds in person, by telephone, or based only on submissions; that either party may bring a claim in small claims court in lieu of arbitration; and that the arbitrator may award any form of individual relief, including injunctions and presumably punitive damages.  The agreement, moreover, denies AT&T any ability to seek reimbursement of its attorney’s fees, and, in the event that a customer receives an arbitration award greater than AT&T’s last written settlement offer, requires AT&T to pay a $7,500 minimum recovery and twice the amount of the claimant’s attorney’s fees.

It would have been nice if AT&T gave its customers a choice to opt in or out of the arbitration clause, but I suspect many if not most consumers would opt in.  In this case, the lead plaintiff’s claim was that AT&T improperly charged him about $30 sales tax for a free phone.  How many consumers in such a situation would not opt for a dispute resolution mechanism that is free (to the consumer) and relatively simple?  AT&T built into the agreement adequate incentive for it to pay or settle most claims.  Class action litigation, either in court or in arbitration, usually ends in a settlement, but only after the consumption of large amounts of attorney fees, costs and time.  The policy question that remains after the Supreme Court’s decision in this case is whether the additional deterrent effect of a possible class action is worth the expenditure of those fees, costs and time. 

I am not a fan of arbitration clauses imposed on unsophisticated parties in contracts of adhesion.  But the arbitration clause and class action waiver in this case were hardly one-sided.  They provide incentives and benefits, as well as detriments, to both parties.  Neither the parties nor the Court addressed this aspect of the unconscionability issue in this case, but it may still be possible to argue that some arbitration and class-action waiver clauses are so one-sided as to be unenforceable, even under the FAA.  So, as long as this decision is not used to validate every arbitration clause and class action waiver in all consumer contracts, it may not mean the end of consumer class actions in all cases.