Primary dispute resolution

At a recent seminar that I conducted, I asked the participants what their biggest obstacle was in resolving disputes.  They quickly identified the primary reason, borrowing a line from the movie “Cool Hand Luke”: Failure to communicate.  So I asked them what the best way to solve that problem was.  Did they say file a lawsuit?  Of course not.  Better communication is the primary solution.  Litigation is the last resort. 

Why then are mediation and arbitration called “alternate dispute resolution”?  The vast majority of disputes that give rise to lawsuits are settled short of trial, either by direct negotiation or by mediation.  So in what sense of the word are mediation and arbitration “alternates”?  It is time we start a movement to call them what they really are — the primary means of dispute resolution.  Who wants to join me in referring to mediation and arbitration as primary dispute resolution from now on?

If you want to send a message . . .

Movie mogul Sam Goldwyn is credited with the now famous quote “If you want to send a message, call Western Union.”  Goldwyn, of course, was talking about movies, which he thought were intended to deliver entertainment, not political or social messages.  Other producers disagree and many “message” movies have been produced.  However, Goldwyn’s quote might be more applicable to dispute resolution.  How many times have we heard “It’s not the money, it’s the principle” as an excuse for not settling a dispute?  The retort to that excuse is “yes, but how much is that priniciple worth to you?”  Everyone has their price.  For the right price, you can presume the principle point was made and the message got through, even without an explicit acknowledgement. 

This is not to say that dispute resolution is all about money.  A friend of mine who has been a mediator for a long time recently told me he did not like mediating personal injury cases because all that it involved was asking one side to give a little more and the other side to take a little less.  I disagree.  There is much to talk about in personal injury cases besides money.  Trial of a personal injury case involves determinations of relative fault and causation, as well as valuation of the injuries.  Principles such as personal responsibility, social and business obligations, and economics (externalities) are frequently involved.  So are insurance coverage and subrogation.  A good mediator uses these talking points to move parties off of their predetermined dollar positions.  Even if the parties cannot agree on these principles, they need to understand what they are facing if they don’t settle.  If the parties are using the mediator merely to convey dollar amounts, they might as well use Western Union.  If one side wants to send a message and fight for a principle, they need to raise it and discuss it.  Then they can get back to the bottom line and find the dollar value of those principles. 

Kudos for Foreclosure Mediation Project

Good PR for the Milwaukee Foreclosure Mediation Program in today’s Milwaukee Journal-Sentinel. And it looks like they need it. According to the article, 5800 foreclosure actions are pending in the City of Milwaukee, but only 326 people applied for mediation as of the end of November. Maybe the word will finally get around now.

Arbitration for Automobile Dealers

About a month ago, I wrote a post on the federal legislation which allows automobile dealers to seek arbitration if their dealership was closed due to the Chrysler and GM bankruptcies.  I noted that the dealers do not merely want arbitration — they want their dealerships to continue (or to reopen).  Recent news reports say that around 800 dealers have filed requests to initiate such arbitration.  Some articles surmise that not all of those requests will result in hearings.  Many dealers are likely to settle before such hearings take place.  Now that dealers have legislation preserving some of their rights post-bankruptcy, along with a forum in which to enforce those rights, negotiating settlements should not be that difficult.  If they cannot reach agreement by direct negotiation, a good mediator should be able to help.  Sounds like a good opportunity for everyone.

A lesson from the locker room

I have to admit that I am in mourning. No, my family and friends are fine, thank you. I’m mourning the Green Bay Packers’ overtime loss to the Arizona Cardinals yesterday. I’ve been a Packer fan since Vince Lombardi brought 7 titles to Titletown in 9 years. But it was equally thrilling to see them come so close to making a nearly miraculous comeback yesterday. Midway through the season, no one gave the Packers much of a chance at reaching the playoffs this year. But their 7-1 record in the second half of the season lead to yesterday’s shootout in the desert. And what lead to that second half record is what the Milwaukee Journal-Sentinel called “Rant ‘n’ Roll.” After a humiliating loss to the previously winless Tampa Bay Buccaneers, the Packers did a little soul-searching, and then a little finger-pointing. In other words, conflict. As some of the players put it, “no one walked out of that [locker room] meeting arm in arm like brothers.” But when they returned after a day off, quarterback Aaron Rodgers noted that something had changed. He felt something special was going to happen. And it did. The Packers were never humiliated again. Even yesterday, after being down by 3 touchdowns halfway through the 3rd quarter, they didn’t doubt themselves and managed to tie the game in regulation, sending it into overtime. Their locker room conflict and ranting had made them stronger. It doesn’t always happen that way. But a little ranting and conflict can be managed to produce something positive, if the parties are willing to listen and try to understand each other. Apparently, that is what the Packers did. I think that is a lesson that lawyers, business people, politicians, and diplomats would do well to study.