The Importance of Process
By John Miles, CEO
Dispute resolution can and should offer both financial and emotional resolution. Alternative Dispute Resolution (ADR) can offer the satisfaction that litigation often cannot.
Years ago, we utilized the services of a woman to take care of our pets when we were out of town. As a child, this woman was afflicted by an ailment that robbed her of her hearing.
She found communication difficult.
She lived on a farm and would communicate with animals, in particular, a bunny rabbit she loved.
One evening, family members came to visit, bringing their dog with them. The dog got loose and ended up mauling her bunny rabbit to death. An accident, to be sure, but one that resulted in extreme trauma for the woman – mainly because she found speaking, in general, a difficult process.
Distraught, she contacted me, walked me through the whole ordeal, and dissatisfied, concluded with: “I guess I could file a lawsuit and get a new rabbit.”
It was clear that a lawsuit fell short as an adequate response or solution. It simply did not fulfill everything she was seeking. It was not merely about financial restitution – it was about an emotional acknowledgment of her loss.
And that is where ADR stands apart from its counterpart, litigation. ADR is uniquely able to make a person “whole” after a loss.
In another life, I was a trial attorney and would prepare clients to testify before a jury. This exercise was often a difficult task because trial testimony is opposite to the way people communicate in their everyday lives. I recall one occasion where I was working with a client who had been injured in a fall in a store. I explained what the rules of evidence would and would not allow her to say. She would begin to tell her story only to have me interrupt her, “Remember, you can’t talk about insurance.” Exasperated, she said, “It seems like I can’t talk about anything that’s important.”
Attorney’s and judges are comfortable with the rules of evidence and courtroom decorum; however, clients are not. They simply want to tell their story to the jury in hopes that the jury will listen and render a just result. I have discovered that, for many litigants, the opportunity to be heard is often as important as the outcome of the proceeding. Consider the young woman who lost her pet. It would be nice to have a new rabbit, but what she really needed was to be heard and affirmed.
If the process is as important as the outcome, which I believe it is, then a proper mediation must allow participants the opportunity to communicate with each other. Over the years, I’ve discovered that many attorneys are reluctant to allow their clients to speak at mediation, either out of fear that the client will say the wrong thing or from the belief that the case is all about money and there’s no need to cloud the proceeding with emotion.
In my experience, there will be no meaningful discussion of money until the parties have been granted the opportunity to speak and be heard.
When I was still conducting mediations daily I would sometimes state in my opening that if I were to tell the parties now what the case would settle for both sides would storm out of the room. The plaintiff would think the number outrageously low and the defendant would think the number outrageously high. Early in my career, I believed that my statement was a testament to the power of compromise. However I now realize that the reason my statement was correct had more to do with the need both sides had to be heard. As a neutral, I believed that we were there to talk about money but the parties were there to talk about much more.
Some time ago, I transitioned from mediating into a management role. I have had the opportunity to recruit and train dozens of neutrals and to observe their careers. One of the surest signs that a neutral’s career is winding down is when I begin to hear from clients that so-and-so neutral no longer seems interested in the process. I have learned that what this really means is that the neutral has become impatient and is forcing the parties into a discussion of money before the parties have had the opportunity to adequately express themselves.
Successful neutrals must be skilled negotiators and have substantive knowledge of the law, however, those neutrals who enjoy the greatest success and longest careers understand the importance of process and who have the patience to allow the process to play out.
ABOUT THE AUTHOR
John Miles is the CEO of Miles Mediation & Arbitration. In addition to his executive duties, he mediates high-value, complex matters, on request at a per diem rate. He oversees neutral training and development at Miles.