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This article was written in response to reader requests for an article that addressed the wider scope inside of which mediation and lawsuits both fit.

Part One

My favorite reported mediation concerned two businessmen who sued each other and were referred to mediation. At the close of the mediation they had tens of millions of dollars in future contracts signed -- in addition to resolving their conflict. The story made well deserved headlines.

The mediation had forced the parties outside of the narrow scope of the lawsuit and back into the broader scope of what they were really about -- doing business (rather than paying attorneys fees). In the broader scope they were able to work out their problems and to recognize that they were better served by a healed and expanded business relationship rather than a severed one.

It is true that not all conflicts have such rosy resolutions. There are times when there are either unrealistic goals that will not be changed or matters that can only be settled by a court order. We've all seen such cases, such as family law matters where an abusing spouse insists that if this time, when the other party gets out of the hospital, they will admit it is all their fault ... then all the marital problems will be solved.

There are also conflicts that resolve directly around a bottom dollar and nothing else, such as many (though not all) personal injury law suits.

But, in the majority of conflicts, many of which are not litigated, there is a broader context that mediation can reach. Adversaries who refuse to try mediation will miss that broader context and often pay heavily for a judgment that does not resolve the real conflict and which provides a solution that costs more than it awards.

In this column I am addressing instances where mediators often provide a very useful broader context that addresses important issues. These include divorce, labor and business conflicts (including accountings) and medical issues (including malpractice and structural conflicts).

Family Law

Most divorces have more issues that need to be resolved than just who has primary custody of the children and how much child support should be paid. If just the legal issues were the ones that caused the problems, most people who are in the divorce process would not be getting divorced.

The crucial resolution that many divorcing people need to face is learning how to cooperate and communicate in a reasonable and adult fashion -- generally they need to make use of skills and relate in ways that would have saved the marriage in the first place, all in the face of extreme emotional pressure.

Of course there are structures built into the process that help. Most states now have standard visitation and support guidelines. This allows the areas of communication to be channeled and directed with firm boundaries.

However, educational plans, child rearing decisions, residency, weekend sports commitments and similar issues often cry out for co-mediation of a divorce with both a family counseling specialist and an attorney. In fact, often a family counseling specialist can bring the parties to the point where they need an attorney only to file and prove-up the divorce -- and then only if their state does not provide alternative access to the courts.

Because most family law matters are caused by the broader context which the law ignores, mediation is especially suited to resolving those issues and in aiding the parties in dealing with the future in ways they could not deal with the past.

Labor and Business.

Labor and business relationships generally have very clear alternatives to negotiation. Labor can go on strike. Management can close down the location or the business. Business relationships are the same. The parties can just chose not to deal with each other in the future.

By the time a lawsuit is usually filed, the parties in labor or business settings have often reached the point where they no longer want reconciliation -- and have also reached the point where reconciliation is what they need (in a business sense) more than anything else.

Many times in a commercial setting, no matter how a judge or arbitrator rules, by the time the ruling is final both sides have lost more from the conflict than either gained from the award. Consider some sports strikes. Many times the majority of athletes never earn enough money after the strike to make up what they lost (especially from endorsements and performance bonuses) during the strike. Generally the owners never recover enough money following the closure or slow-down to recover the losses of the strike.

Both sides are poorer. And both sides are usually willing to do it again to avoid appearing weak or being bluffed by the other side into backing down the next time a conflict comes up.

The same thing is true when a manufacturer and its best supplier go to court over a conflict. There was a reason they were doing business and often a good reason why they should keep doing business. They need the conflict resolved as soon as possible -- with as little remaining discord as possible.

The similarities between business and family law matters is often amazing. The failures to communicate and to understand -- failures of information -- are such a substantial part of the process (and very rarely resolved through litigation) -- that mediation is often incredibly effective.

The key to such mediation is a clear understanding of alternatives to mediation (such as a strike or a jury trial), a sharing of information (so that each party understands the other's real limits), and an exploring of the relationship between the parties and of the parties to the realities of the outside world.

Both sides need that understanding regardless of what kind of resolution they seek or can obtain.

True information is critical to this process. If my supplier really will go bankrupt if it supplies me with the part at the agreed price (and so just refuses to) I can first realize that going out of business is a real issue (and not just clutter or posturing) and second decide if in light of the realities I still want to continue the relationship.

Often the answer is yes! -- continue the relationship -- even on different terms. While often it is the case that either a supplier can not provide, or a buyer pay for, the item at the agreed price [or quality or similar issue which boils down to price] but what they can do is still better than any alternative provider or buyer.

For example, in a typical recent technological business conflict, computer RAM at the contracted price of $200.00 for eight megabytes may just not be available (or reasonable) due to market shifts. But, on the times, amounts, quality and price (relative to the rest of the market), the relationship is still worth saving even though the price changed dramatically (both up and down in the recent swings). Mediation will offer a chance for saving the relationship to happen.

Mediation provides a vehicle for obtaining, sharing and understanding the information in the broader context rather than within the confines of the cost/benefit analysis of a law suit.

Part Two

Medical Issues

In medical malpractice cases it is amazing just how many plaintiffs are motivated by a desire for an apology or an acknowledgement of their loss. (They want a sympathetic "I am so sorry this loss happened" -- a statement which is not an admission of fault, but of sorrow and empathy and a statement that is often a key statement that closes a mediation conference).

For doctors, it is amazing the amount of stress and loss of performance they suffer when sued. It is not just the time consumed by depositions and attorney meetings, but the overall additional stress and loss that hurts the doctor most. There is a substantial emotional and professional benefit for doctors in resolving claims as soon as possible.

These broader issues have no place in typical litigation. Apologies or expressions of sympathy are alien to litigation. Wear and tear on a client has a null value in a law suit. These same issues can often improve satisfaction and quality of life for all parties involved through early resolution.

In addition to medical malpractice claims, mediation of the practice of medicine itself often provides substantial greater context to conflicts over staff, equipment, protocols, hours, assignments and similar problems. This is especially true in institutional settings (such as hospitals). As a result, more and more larger institutional hospitals are retaining full-time mediators on staff.

Hospitals are unique in that the general rule is that the majority of people who want to make decisions or have an input are independent contractors. Independent professionals whose primary training has nothing to do with administration or management are the ones who seek to have the most substantial input (and, in many states, are required by law to have it).

Mediators provide critical help in calming down the parties and in bringing the real issues to resolution one at a time (rather than the usual attempt to wrap up all the conflicts into one resolution centering around the current "out in the open" conflict).

Ironically, medical institutions are one place where it is both important to be aware of the large context, and to resolve the issues outside of much of the larger context. E.g. the location of a new nurses' break room should be resolved outside of the conflict over who is on the referral list for outside blood work which should be independent of negotiating bed rates with an HMO.

A mediator can help the parties to focus and work through the issues one at a time rather than the usual process which often leaves them thrashing around at every problem until outside forces (e.g. government regulators, etc.) force panic resolutions.

On the other hand, by being aware of the influence of the broader context, a mediator can act to focus the parties. Litigation (or strikes or similar blunt force tools) merely adds another layer of confusion in most of these issues, diffusing rather than focusing the parties. By creating successes, a mediator can create a much more positive and healthy wider context.


Most conflicts exist in a wider context. From structured settlements in personal injury claims, to referring parties to appropriate counseling (or, in therapeutic mediation, providing that counseling), to aiding the parties to focus on which concerns are relevant to the issue at hand, mediators can bring a better resolution to all concerned by being aware of and working on the larger context not available to a court's final judgment.

Many of the benefits are not measured in pure immediate cash in hand, but in personal and future productivity and happiness -- items of a broader context and the rewards of being aware of and resolving those broader issues.

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Copyright 2000 Stephen R. Marsh [home]

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