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?

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. 

Regardless of how the Wisconsin Supreme Court decides this case, someone should ask why these parties chose binding arbitration?  One of my earliest posts is titled “To Mediate or to arbitrate?”  I suggested that arbitration is a win-lose proposition while mediation can lead to a win-win solution.  In this case, arbitration might result in a lose-lose proposition.  If the award is upheld and the employer allows the lawyer to come back to work, but the lawyer refuses to do so, must she give up the monetary award as well?  Both parties made it abundantly clear that they don’t like each other.  Will the Court really give them the benefit of their bargain by enforcing a shotgun wedding?  In any event, this arbitration has not proven to be an economical and confidential alternative to litigation.  The parties arbitrated and are now engaged in very public litigation.  Was there no mediator available to save these people from themselves?

A pessimist might look at this and wonder what all these people are thinking — getting married in the worst economy in a generation? Cynical mediators and lawyers might think this is a good sign — so many potential divorces to mediate or litigate. Not me. I’m an optimist, and I think all of these weddings are a good sign for a more positive reason. Marriage can be difficult. It takes work and commitment and communication. But it can also be the most rewarding thing a person can do. To start a family and raise children, and to have a life partner who will share the good times and work through the bad times with you. It sometimes requires negotiation and compromises, just like the rest of life’s activities. Your education, your job, major purchases. It’s all negotiable. And that takes effort, research and communication. As a lawyer, I know that reasonable people can come to different conclusions given the same facts and circumstances. As a mediator, I know that reconciling these differing conclusions causes conflict, stress and sometimes legal disputes or litigation. But the fact that so many people that I know are still entering into marriages, getting educations, entering the job market, starting new businesses, and making major purchases is a sign that they are still hopeful. I think that is a very good sign. It shows they care about the future and are willing to think about the problems and potential solutions. And, maybe, it shows a mature realization that the alternative — retreating into isolation — can lead only to a collapse of the economy and, worse, loneliness.

So keep those wedding invitations coming! And have a happy and healthy New Year.

Of course, the settlement agreement could have mentioned attorney fees, but it did not.  It would have been a simple matter for the agreement to state whether or not it included attorney fees.  By now, it should be routine for attorneys or mediators to raise that issue in settlement negotiations, especially where a fee-shifting statute arguably applies to the subject matter of the dispute.  In the absence of a provision in a settlement agreement reserving the right to seek attorney fees in court, parties to the settlement naturally expect that the settlement puts an end to the matter.  The moral of this story is that the settlement agreement should specify whether or not it includes attorney fees. 

“If run properly and fairly priced, the public option can provide a superior choice for many consumers.  Those who don’t want a public option could still buy private insurance.  However, the public option likely will not be run like a private business. If the public option runs a deficit, it may use taxpayer money to make up the difference.  If so, there would not really be a competitive environment.  This would be similar to a market where 5 companies compete, but one has access to a government subsidy and free government loans.  This unfairly tilts the playing field.  Opponents of the public option fear that this will take place; the public option will get unfair support from the federal government.  Many opponents believe that in the short run, the public option may be a good idea, but in the long run, it may dominate the market, and become a Medicare-for-all program.

“Also, applying your analogy to government health insurance, the people who get the option (i.e., consumers) are basically the same people who give the option (i.e., the government, a.k.a. taxpayers).”

This was very helpful.  I also understand that options themselves are very much like insurance.  When you give (or sell) an option, you want to be fairly compensated for it.  When you get (or buy) an option, you expect to pay something, but you don’t want to overpay.  What is often lost in the health care debate is that we are trying to insure against continued exhorbitant increases in health care and insurance costs.  So the 64 thousand (or billion?) dollar question is, how much do we pay to get our public option health insurance?  Ideally, only those who opt in will pay.  There will be no subsidy, other than for those who otherwise would not be able to buy any health insurance, and that money could go to any insurer, not just the public one.  The whole point is to have health insurers who will compete with one another and keep premiums down, while negotiating with health care providers to keep costs down.

Now, the question is how do we keep overall health care costs down when the demand (from all those previously uninsured people) will presumably go up, while supply remains the same (at least in the short term).  That sounds like a presecription for rising prices to me.  In any event, I still do not think it is a good idea to reject or reduce our options.  Options are still a good thing, especially in the negotiation phase.