hyman - 4 ways of looking at a law suit

Rutgers School of Law- Newark Legal Studies Research Paper Series

Research Paper No. 030

~and~

NYLS Clinical Research Institute Paper No. 08/09 #15

Four Ways of Looking at a Lawsuit: How Lawyers Can Use the Cognitive Frameworks of Mediatio

By

Jonathan M. Hyman Rutgers School of Law- Newark

Electronic copy available at: http://ssrn.com/abstract=1347057

*

Acknowledgments: Thanks to the participants of the Rutgers faculty colloquium and the Marquette Works inProgress conference for their insights and suggestions, particularly Howard Gadlin and Melissa Manwaring. Particularthanks are due to Douglas Frenkel and James Stark, whose first rate writing on mediation got me thinking about whetherlawyers work in mediation is merely intentional technique, or might be indicative of deeper conceptual frameworks.Special thanks also to the late Allen Axelrod, a noble presence for many years at Rutgers Law School, who in his usualsuccinct, respectful and crystaline way got me to restructure the entire article. All misguided and other erroneousthoughts and expressions remain my own.

FOUR WAYS OF LOOKING AT A LAWSUIT: HOW LAWYERS CAN USE THECOGNITIVE FRAMEWORKS OF MEDIATION

Jonathan M. Hyman*Rutgers Law School - Newark

Abstract

When lawyers represent clients in the process of mediation, tensions mayarise between the goals and actions of the mediators and those of the lawyers.Mediators may be seeking to find ways to create new value for the parties, beyonda simple compromise of their legalistic claims and defenses. Or they may beseeking to repair or improve the parties relationship. Or they may wish to leadthe parties to greater mutual understanding. But lawyers often seem to be limitedto an adversarial, legalistic approach, looking only for some minimal orreasonable compromise and standing in the way of the mediators other goals.These tensions run deeper than a difference in goals or tactics or techniques.They arise from different cognitive frameworks about conflict and ways to dealwith it. The cognitive frameworks, often operating tacitly and without an actorsconscious awareness, create different and competing perceptions of what isrelevant and what is appropriate to do. The mediation literature has articulatedfour different, if overlapping, cognitive frameworks for dealing with conflict in amediation setting: distributive compromises, creating more value for all,changing relationships, and increasing the mutual understanding of the parties inconflict. Four examples of conflicts between mediators and lawyers, drawn fromstories of actual mediations, demonstrate these conflicting frameworks.

Understanding the cognitive frameworks reveals ways in which lawyerscan operate congruently with mediators, rather than in opposition to them. Thecognitive frameworks are versions of ways that people lawyers included ordinarily have available to deal with conflict. There is nothing inherent inlegal thinking that prevents lawyers from shifting into non-adversarialframeworks in a mediation, although the shift can be challenging. Similarly, alawyers ethical obligation to act in a clients interest does not stand in the way ofa lawyer inhabiting one of the alternative frameworks. Indeed, because thealternative frameworks can actually serve a clients interests in ways not easily


FOUR WAYS OF LOOKING AT A LAWSUIT 2

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Persuading the mediator of the rightness of the clients cause can be part of this task, but only in an indirectmanner. Despite her formal impartiality, a mediator who sees the correctness or virtue of the clients claims may engagein a variety of actions that could influence the other party to come around to what the client wants. For instance, themediator might subtly or not so subtly indicate her views on the legal merits of the clients claims, thereby inducing theother party to make some concessions in his bargaining positions. The mediator might indicate her views of theunfairness with which the client was treated, or the fairness of the settlement terms proposed by the client. Even withoutan explicit opinion, such views might be subtly conveyed through tone of voice, facial expressions, body language andcontrol of the agenda of discussion. As useful as such persuasion might be to the client, persuasion of the neutral is stillonly one step in the process of trying to persuade the other party to do what the client wants, not an end it itself.

achievable within an adversarial, distributive approach, lawyers have a moderateethical obligation to seek to use alternative frameworks within a propermediation setting. But it is not easy to shift from one framework to anothersimply by intending to do so. I suggest that paying attention to certain categoriesof things discussed in mediation is a practical way to identify and influence theoperative framework. Certain subject matters, such as what happened in thepast, what will happen in the future, legal meaning versus moral meaning,feelings, relationship, and how the parties intend to move into the future, tend tobe distinctive for different frameworks, both partially constituting a frameworkand leading others into it. Beyond the questions of whether lawyers can mentallyinhabit the alternate frameworks, whether they ethically may use them, andwhether they ethically should use them, attending to the subject matters thus cangive lawyers a technique for how they can move between frameworks.

INTRODUCTION

The growth of mediation has significantly challenged the lawyers craft of representing

clients. What should a lawyer think and do while appearing with a client at a mediation session?

The actions appropriate for a trial or similar adjudicatory hearing may be largely out of place

before a mediator. In mediation, satisfaction of the clients goals can only come about through

voluntary agreement by the other parties to the dispute, not by persuading a neutral decision-

maker of the rightness of ones cause. Nor will the actions most appropriate for bilateral1

negotiation always serve the interests of the client. The presence of the mediator changes the

dynamics of the negotiation process, and can throw out of kilter the moves that might be most

effective in simple bilateral negotiation. But mediation is an opportunity as well as an obstacle.

It gives the lawyer options that are unavailable in adjudication and rare in negotiation. Lawyers

need to know how to seize these opportunities.

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For a recent and wide-ranging collection of advice to lawyers about mediation see HANDBOOK ON2

Mediation (Thomas E. Carbonneau & Janeatte A. Jaeggi eds. 2006), including, among others, articles such as Joel E.Davidson, Successful Mediation: The Dos and Donts, in Id. at 71-76 and Karin S. Hobbs, Attention Attorneys! Howto Achieve the Best Results in Mediation, in Id. at 177-184.

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Jean R. Sternlight, Lawyers Representation of Clients in Mediation: Using Economics and Psychology toStructure Advocacy in a Nonadversarial Setting, 14 OHIO ST. J. ON D ISP. RESOL. 269 (1999) (reviewing recent cognitivescience about negotiation and decision-making for insight into how lawyers representing clients in mediation can bemore effective.)

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Harold Abramson, Problem-Solving Advocacy in Mediations: A Model of Client Representation, 10 HARV.NEGO . L. REV. 103 (2005); HAROLD I. ABRAM SON , M EDIATION REPRESENTATION: ADVOCATING IN A PROBLEM-SOLVINGPROCESS (2004). (setting out the goals and methods a lawyer representing a client can use in mediation to captureopportunities for value-creating resolutions.) For an approach to advocacy in mediation that is comprehensive andinsightful, but perhaps somewhat less systematically conceptual, see JOHN COOLEY , MEDIATION ADVOCACY ( 2002 )([T]he role of the mediator involves instinctive reactions, intuition, keen interpersonal skills, and sensitivity to subtlepsychological and behavioral indicators as well as logic and rationality. Id. at 4.)

See, e.g., ROBERT P. BURNS, A THEORY OF THE TRIAL (1999); THOM AS A. MAUET, TRIAL5

TECHNIQUES (4 ED . 1996); ALBERT J. MOORE ET AL., TRIAL ADVOCACY: INFERENCES, ARGUMENTS ANDTHTECHNIQUES (1996).

See, e.g., ROBERT MNOOKIN , ET AL, BEYOND W INNING (2004); G. RICHARD SHELL, BARGAINING6

FOR ADVANTAGE (2007); CHRISTOPHER HONEYMAN & ANDREA SCHNEIDER, THE NEGOTIATORS FIELDBOOK (2006).

The mediation field is just beginning to articulate what lawyers should think and do

while representing clients in mediation. We have lists of dos and donts, and a wide collection

of war stories and suggestions. Some scholars have developed systematic approaches to the2

problem, primarily focusing on using mediation to overcome various strategic, cognitive, and

emotional barriers to negotiated agreement. Others urge lawyers to use mediation for3

developing enhanced settlement proposals, ones that would serve the interests of the parties

better than simple compromises of bargaining positions. These are sound developments. But4

the field has not yet reached the stage of conceptual maturity it could have. Trial practice has

received a much more thorough treatment, effectively putting together both general concepts and

advice about specific actions. Negotiation by lawyers, drawing on extensive and continuing5

research in economics and psychology, has also received extensive treatment that is both

conceptual and pragmatic, and quite different from our models of trial practice. Representation6

of clients in mediation draws on both persuasive legal advocacy and artful negotiation, and yet

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does not fit well with either. It seems to be terrain in which the advocacy moves of trial practice

and the techniques of negotiation collide. The mixture of these two sets of ideas produces a kind

of conceptual fog.

It would be desirable to burn the fog away. This article is an attempt to do so by

advancing a relatively systematic and coherent account of what representation of clients entails

in the distinctive process of mediation. Such an account should not be limited to the models of

trial practice and negotiation. The task is made more complex by the fact that mediation theory

has become extremely wide-ranging and varied. Many different concepts and modes of practice

compete for attention and application. This article is preliminary and does not purport to

advance a full theory of representation in mediation. It attempts to sketch out a possible theory,

however, by articulating an underlying structure that can encompass the variety of approaches to

mediation and make them available to lawyers, both conceptually and practically.

Roughly speaking, the varied approaches to mediation can be divided into four

categories. Some mediators and mediation focus on using mediation as an opportunity for the

parties to negotiate in a distributive, positional manner. I will call this a Distributive framework.

It is by far the most familiar framework, and the one in which most lawyers are inclined to work.

It is probably the only one that most lawyers would recognize. A second category uses

mediation to uncover the parties underlying real world interests and needs, and uses those

interests to craft agreements that will provide more tangible benefit to the parties than a simple

distributive negotiation. This is a Value-creating framework. Still others treat the prime purpose

of mediation quite differently, as an opportunity to repair or improvement of the parties

relationship. This is a Relationship framework. The fourth category I will call Understanding.

It uses mediation as an opportunity for the parties in conflict to increase their understanding of

themselves and the others enmeshed in conflict with them. The parties use their increased

understanding to make decide what to do about their conflict. Whether they reach an agreement

that resolves their dispute is less important than increasing their mutual understanding of it.

Understanding and distinguishing between these four categories is important for

mediators. It is equally useful for lawyers who represent parties in mediation. The categories

can guide lawyers in deciding how to plan, how to prepare their clients, and what to do in the

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JEFFREY KRIVIS, IM PROVISATIONAL NEGOTIATION (2006).7

mediation itself. The task for lawyers is to recognize and become adept in working in each of

these modes of thought and action.

I propose that the categories are more than matters of convenience. They are coherent

cognitive frameworks, each embodying characteristic mental ways of organizing information

and stimulating action. Each is a distinct field of tacit knowledge. The frameworks enable

lawyers to make quick, almost unconscious decisions about what to say and do; depending on

the framework, certain actions seem obvious and certain information seems quite relevant, while

other information and action seems inappropriate, if it comes up at all.

To illustrate the frameworks and some of their differences I begin in Part I with four

examples of how lawyers act in mediation, adapted from a book that describes actual

mediations. In each, the lawyer and the mediator act at cross purposes. The lawyer handles the7

situation in ways that upset the goals the mediator seeks to achieve. Each is an example of

lawyers using a different mental framework from the mediator, or using a framework in a

different manner. The resulting conflict is not just a conflict of goals and methods. It is a

conflict of ways of understanding mediation and the process of disputing.

In Part II I describe the concept of frameworks in more detail. I show how the conflict

between the lawyers and the mediators depicted in the examples arises from the fact that the

lawyers and the mediators are using different frameworks. They are probably not seeing

things in the way the others in the room do.

Once we understand that the tension between lawyers and mediation is a mismatch of

frameworks, we face the question of whether the discrepancy is inevitable. If lawyers could step

into one of the alternative frameworks, their work in mediation could become consistent with the

framework that the mediator might be using, rather than staying at odds with it. Moreover, a

lawyers facility to move between frameworks is important even beyond the question of

avoiding conflict with mediators. It might be important for lawyers to adopt one of the

alternative frameworks, regardless of what framework the mediator happens to be using.

Precisely because mediation can provide such a rich variety of alternative frameworks for

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Legal reasoning and distributive, positional negotiation have analogous logical structures. Both8

involve categories with dividing lines between them. See text at note 44, infra.

dealing with conflicts and disputes, it offers benefits to clients and to our system of disputing,

beyond those that adversarial adjudication or even distributive, positional bargaining can

provide.

But urging lawyers to inhabit these alternative frameworks raises a number of questions:

Can lawyers actually think in the alternative frameworks? Their legal training and experience,

their sense of role, and the logical and distributive nature of much legal work may make it8

mentally difficult, if not impossible, to embrace any of the alternative frameworks. In Part III, I

discuss why legal reasoning and lawyers mental habits should not disable them from adopting

one or more of the alternative frameworks.

Even if they can think and act in a variety of frameworks, ethical constraints of lawyering

may prevent lawyers from doing so. Thus, the next question is whether lawyers may ethically

adopt alternative frameworks when they are acting as the representative of a client in a

mediation. Part IV describes why it is ethically permissible to do so.

Part V takes up a related ethical question. Should lawyers seek to adopt the alternative

frameworks? Even if it is permissible to do so, client objections, or lawyers own personal

dislike of the alternatives, may inhibit them. I argue that the benefits that the alternative

frameworks of mediation, both to clients and to our systems of dispute resolution, are substantial

enough to impose at least a modest obligation on lawyers to try to use them.

The final question is how lawyers can bring the alternative frameworks into the

mediation room. If frameworks are a form of tacit knowledge, it may be difficult for lawyers to

consciously put them on or take them off like a suit of clothes. When mediators practice them,

the frameworks may be seen as complex attitudes and skill sets that can only flourish after years

of dedicated practice. But lawyers may have to adopt a variety of different frameworks without

a longstanding dedication to one or another. In Part VI, I suggest a more accessible way for

lawyers to at least begin to enter different frameworks. The guideposts are the subject matters

that are discussed during the mediation. Certain subject matters are more distinctly part of some

frameworks than they are of others. By observing the kinds of subject matters that are discussed

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KRIVIS, supra note 7. I have used disputes described by Krivis, as well as some of the negotiation9

dynamics, but have imagined actions by lawyers in the mediation that Krivis does not describe. Krivis focuses onwhat mediators have done in the various situations he describes. I add accounts of lawyers to change the focus to

in a mediation, a lawyer can pick up which frameworks may be operating in the room. By

bringing up certain critical subject matters herself, or by continuing to discuss those subject

matters in more depth and breadth as a mediation progresses, a lawyer can influence the

mediation to move into, or to stay within, a particular framework. I identify seven key subject

areas for mediation discussion. They are:

i.) What happened and what it meant;

ii.) What can or will happen in the future;

iii.) Law and legal rights;

iv.) Fairness and moral rights;

v.) Relationship;

vi.) Feeling; and

vii.) What someone wants, what they can get, and how they can get it.

These subject matters do not each belong exclusively to one of the frameworks. Some can

appear prominently in several; the particular content that is discussed within a subject matter

may vary in different frameworks. They are only a suggestive diagnostic tool for identifying a

framework in operation, not a definitive one. Similarly, if a lawyer or mediator were to move

the discussion into one of these subject areas, or to continue talking in a subject area when the

others seem ready to change the subject, it will not guarantee that the mediation or its

participants will stay, or move into, the particular framework associated with the subject matter.

But the subject areas do provide a reasonably accessible way for lawyers to try to guide the

mediation and the other parties into a desired framework.

I. FOUR SCENES FROM A MEDIATION

To describe the ways in which lawyers can operate at cross purposes with mediators and

mediation, I have set out four different mediation incidents, inspired by a recent book describing

a variety of mediations. Each highlights a different model or framework of mediation. Each9

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what lawyers can and should do in mediation.

In Kriviss story from which this account is adapted, the plaintiffs lawyer initially refused to10

disclose medical information showing that the defendant was legally blind. The defense lawyer was not yet aware ofthe information, and the plaintiffs lawyer wanted to save it for surprise at trial. The mediator persuaded theplaintiffs lawyer to disclose to the defense lawyer, thus substantially increasing the defendants settlement offer. KRIVIS, supra note 7, at 154.

produces a different kind of conflict with a lawyer.

Incident 1 The Automobile Accident: The dispute is about an automobile

accident at an intersection. The defendants car was making a left turn when it

collided with the plaintiffs car, which was traveling in the opposite direction.

The plaintiff alleged that the defendant had made the left turn without looking.

By way of defense, the defendant alleged that the plaintiff had been speeding. The

plaintiff suffered several broken ribs and some bruises and sprains and had some

residual stiffness. He demanded $1 million in damages. The defendants lawyer,

however, offered only $3,000 to settle the personal injury claims, giving as

reasons the following facts: Under comparative negligence, the plaintiff was

probably more than fifty percent responsible, because of his speeding, and thus

entitled to nothing; plaintiffs medical insurance had paid for plaintiffs medical

expenses; and plaintiffs personal injury lawyer was known to make extreme

demands in settlement negotiations, only to settle on the eve of trial after making

huge concessions.

The mediator sought to deal with the huge gap by meeting with each side

separately (commonly called caucusing), expressing her opinion to each that their

settlement positions were way out of line, were not supported by the facts, and did

not reasonably reflect the likely outcome at trial. In her view, the extreme

settlement positions were taken only as a hardball negotiating strategy of dubious

effectiveness. Despite the mediators interventions, the lawyers refused to change

their settlement positions.10

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See LEIGH L. THOMPSON , THE M IND AND HEART OF THE NEGOTIATOR 34-35 (3D ED . 2005)11

(describing research showing that the rate of negotiation concessions increases as negotiators near their finaldeadlines, and that negotiators believe deadlines are a strategic weakness.) See also William Zartman, Timing andRipeness, in THE NEGOTIATORS FIELDBOOK 143 (Andrea Kupfer Schneider & Christopher Honeyman, eds.2006).

The lawyers in this example may well have been using the mediation primarily as a device to obtaininformation from the other side, a kind of free discovery, rather than as a strategic step towards immediatesettlement. If so, they had little interest in reaching an agreement at the mediation itself. But they were probablystill operating in a distributive framework, using mediation to gather information to seize the largest possible share(or give up the smallest possible share) when the matter is settled, as it probably will be, later and closer to trial.

Did the lawyers do the right thing? In this instance, they were negotiating with highly

positional strategies within a distributive framework. The framework was distributive in that the

lawyers were negotiating about a single issue: the dollar amount of the settlement payment to the

plaintiff. The issue was subject to a constant sum distribution: each dollar more to the plaintiff

was an equivalent dollar less to the defendants insurance company. The lawyers strategies

were positional in that their work consisted primarily of taking negotiation positions $1 million

and $3,000, respectively with the aim of inducing large concessions from the other side, while

conceding as little as possible themselves. The lawyers seemed to have a love of deadlines as a

tactical negotiating tool; they expected that the other side would not make the largest concession

in their position until trial was upon them.11

The mediator was also operating in a distributive framework. She was treating the size

of the settlement payment as the only issue to be negotiated. And she accepted that the

settlement funds were to be distributed in accordance with the negotiating positions taken by the

lawyers. What she was trying to do, however, was to speed up the process of making mutual

concessions, to get to an agreed settlement number well before the eve of trial. She was trying to

wean the lawyers from their highly competitive positional tactics. The conflict between the

mediator and the lawyers was about how to play the tactics of the positional, distributive game.

Incident 2 The Real Estate Purchase: A religious school negotiated to purchase

a building. There was some written communication between the school and the

building owner, but before a formal real estate sales contract was signed, the

owner signed a sales contract, for a higher price, with a commercial real estate

buyer. The schools lawyer claimed that the school had a binding agreement to

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In the case that inspired this example, the school was a religious one and the mediator wore a12

kippah, despite the fact that he was not an observant Jew, to elicit trust from the schools director. That effortseemed to work. The conflict was resolved by completing the sale of the property to the new buyer, who then leasedthe property to the school. Id. at 114-123. I have added the objection from the buyers lawyer, which does notappear in Kriviss account. Such an objection is consistent with a distributive, positional approach to negotiation,rather than one based on the parties underlying needs. In a positional, distributive approach, it is important toconceal information that could damage ones negotiating position.

DAVID LAX AND JAM ES SEBENIUS, THE MANAGER AS NEGOTIATOR 88-116 (1986).13

purchase the property. The owners lawyer alleged that any communication

between the school and the owner, whether oral or written, was no more than

preliminary negotiation, and was not legally binding.

At a mediation of the dispute, which included the school, the building owner, and

the third party buyers, the mediator sought to find out what plans the third party

buyer had for the property. The buyers lawyer said that was private

information and told the buyer not to discuss it.12

Did the buyers lawyer act effectively? Like the lawyers in the first incident, the buyers

lawyer here was apparently operating in a distributive, positional framework. In that framework,

one should be reluctant to reveal private information, because the other party might use it for

tactical advantage. Information about ones plans could be used to ones detriment in a number

of ways. Any settlement positions taken by the new buyer need to be credible. Information

about the buyers plans might suggest that the buyers expressed settlement position was a bluff.

The school would have then been less likely to agree to the buyers settlement terms.

Unlike the first incident, however, the mediator here was not simply trying to speed up

the exchange of concessions. Instead, the mediator can be understood to have been operating in

an entirely different framework: value creating or interest-based negotiation. This framework13

conceives of negotiation and mediation as an opportunity to expand the pie, not just to

distribute it. The mediator was looking for greater substantive efficiency, trying to find or invent

exchanges that would make at least one party better off than they would have been with no

agreement, while at the same time not diminishing the agreements value to the others. The key

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ROGER FISHER, ET AL., GETTING TO YES 56-80 (2D ED . 1991).14

In the case from which this example is drawn, the new owner did not immediately need the15

building for another use. He was thus in a position to take title and then rent the property to the school. Theinterests of both were satisfied without having to decide or compromise on the issue of who was legally entitled tothe property, or how many dollars would be required to get the school to drop its lawsuit. See KRIVIS, supra note 7.

Id. at 92 ff. In Kriviss story, the plaintiffs lawyer objected to talk about relationship, but16

shrugged, gave in, and fell silent when the mediator got the creditor interested in how to preserve his friendship withthe debtor. The mediator moved to a relationship framework by closing the lawyer out of the conversation, ratherthan having the lawyer participate.

is to identify interests of the parties that are complementary, and not entirely in conflict. By

understanding their underlying needs and interests, the parties can invent options for mutual

gain, The mediator in this instance asked about future plans to see if, in some way, the plans14

of the new owner might be satisfied without requiring the school to give up its needs.15

Incident 3 The Carwash Loan: The plaintiff and the defendant had known each

other for several years, attending the same church and seeing each other at their

childrens athletic events. The plaintiff loaned the defendant $30,000 to purchase

and operate a carwash. When the defendant failed to repay as provided in the

loan agreement, the plaintiff brought suit.

At the mediation, the mediator began to ask questions about how the plaintiff and

defendant came to know each other and what kind of contact they had apart from

the loan. The plaintiffs lawyer intervened, stating that the questions were

irrelevant to the case at hand. She asserted that the plaintiff had a very strong

case, that she was hired to collect the debt, and that the mediator was just trying

to get the plaintiff to make an unnecessary concession for the sake of

friendship.16

Here, again, the lawyer was operating in a positional, distributive mode, looking to

maximize the amount of the financial settlement. She expressed her worry that her client, out of

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See id. at 7 ff. In Kriviss account of the mediation of the discharge of an employee, the defendant17

rather than the lawyer objected to having the plaintiff talk about why the discharge had been so difficult for him,fearing that such talk would make the proceeding a therapy session rather than a settlement. The defense lawyer was

friendship, would make a concession that was not required either by the legal strength of the case

or by the negotiation dynamics. Was she acting appropriately for a mediation?

This mediator was operating in a yet a different framework. Rather than trying to speed

up the positional negotiation dance, and rather than trying to create value by working with

underlying needs and interests, the mediator was exploring the relationship between the parties.

She could have been asking herself how it came about that two people who had both a social and

a business relationship got into the situation in which they could not resolve the issue of the

payment of the debt. Was there something about the way they related or communicated that

caused or perpetuated the conflict? Looking forward, they would probably continue to have

some kind of relationship, even if their business arrangements were terminated. Would that

relationship be a satisfactory one, or would acrimony from their dispute unnecessarily poison it?

Could the mediation be an opportunity for clarifying and improving the relationship between the

disputants?

Incident 4 The Promotion: A fifty-two year old employee failed to get a

promotion and a raise. She claimed that she was denied the promotion because of

her age and because she had complained about certain company practices that she

thought were immoral and possibly illegal. She also claimed that her supervisor

had, because of her age, failed to assign her work that would demonstrate her

competence.

The companys lawyer and the head of its human resources department appeared

at the mediation. The employees supervisor did not. The mediator asked the

company to have the supervisor attend. The companys lawyer refused, saying

that this wasnt going to be a group therapy situation or an opportunity for the

employee to get free discovery.17

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willing to hear the plaintiff, however, and the matter ultimately settled.

The mediation might produce more information than a deposition, because a deposition in limited18

to what is legally relevant. The matters discussed in the mediation is limited only by the will of the participants andthe mediator. The mediation might also produce less information, since a witness is required to answer relevant,non-privileged deposition questions, but can refuse to speak in a mediation.

The lawyer was operating in the familiar distributive, positional mode. Was this good

lawyering? Information is a key element in positional negotiating. Each side seeks to obtain as

much information about the other as it can, while concealing information that would undermine

the credibility of ones commitment to a negotiating position, or would give the other side

additional negotiating leverage. If the supervisor were to speak in the mediation, she might

have revealed information about what happened or about herself that would show the

employees legal case to be stronger than the employees lawyer might have otherwise assumed.

With a more optimistic view of the outcome of the case, the employee would have been less

likely to settle for the small amount that the defendant would prefer. The mediation was not

critical for the disclosure of information: If the matter had proceeded to pretrial discovery, the

employee would have been able to take the supervisors deposition and get some of the same

information. But depositions cost the employee money, and she could use any money saved18

for other pretrial preparation, or to avoid the demoralizing effect of incurring large expenses

along the laborious road to trial.

The mediator, however, was using a fourth framework. Rather than focusing on

information about the possible outcome of a trial, which would be used for positional jockeying,

the mediator was seeking to learn how the participants understood what happened, how they

understood the other parties to the conflict, and how they understood themselves. In what ways

did the employee and the supervisor each misunderstand the other? What did each expect from

the other, and from themselves, that got them into the conflict in the first place. What did they

expect now that prevented them from managing the conflict without litigation? By increasing

understanding, the mediator aimed to help the parties develop their own, more effective ways of

dealing with others, with conflict situations, and with themselves. The conflict initially arose

between the employee and the supervisor, although it was most likely linked to a web of

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BERNARD MAYER, BEYOND NEUTRALITY: CONFRONTING THE CRISIS IN CONFLICT RESOLUTION19

248-279 (2004) (arguing that there is a place for adversarial lawyers in a good conflict management process,although it seems to require that lawyers direct their efforts somewhere other than the mediation room itself.)

situational factors and the expectations of others. Dealing with the conflict in this fourth

framework cannot be done without the direct participation of the people who were there at its

inception.

The foregoing scenes pit mediators and lawyers against each other. In each, the lawyer

operated in a way that thwarted the methods used by the mediator. In the midst of a process

designed to manage conflict and resolve disputes, mediators and lawyers found themselves

engaged in a conflict about the process itself. Is this conflict inevitable? Are lawyers

commanded by their ethical obligations to act in the positional, distributive manner described,

regardless of how the mediator is treating the situation? Is there something about the way that

lawyers think and make decisions that inevitably keeps them in the positional, distributive

mode? The conflict presents a normative question as well. Should lawyers and mediators work

in conjunction with each other, rather than at cross purposes?

In my view, the conflict is neither necessary nor desirable. Lawyers representing clients

in mediation can and should be able to work with the same focus and the same goals as

mediators. And this is not simply because conflict makes people uncomfortable or should be

avoided. As many mediators know, conflict is not necessarily bad. It can be used to build better

situations and better outcomes. Perhaps the tension between lawyers working in an adversarial

mode and mediators working in a more collaborative one produces something that is better than

either working alone or in congruence with the other. But I think that it would be better for19

lawyers and mediators to work congruently. Mediation has benefits for people in conflict

substantially different from and beyond what legal adjudication and the adversary process can

provide. Lawyers who cut themselves and their clients off from those benefits, by adhering only

to the distributive, positional ways of settling disputes, leave our dispute resolution system a

poorer place.

To explore how lawyers can work congruently with mediators, rather than in conflict

with them, we need to understand more fully the nature of the conflicts exemplified by the

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For a sobering description of how assumptions about litigation and mediation get in the way of20

satisfying client needs in medical malpractice litigation, see Tamara Relis, Consequences of Power, 12 HARV.NEGOT. L. REV. 445 (2007) (arguing that pervasive assumptions about litigation and related actions prevent partiesfrom obtaining the benefits that they want and that mediation might be able to provide.) One might see myarguments here as trying to articulate a path between litigation assumptions and those of mediation. The task ismade particularly complex because, in my view, there is not one model of mediation, but several.

See, e.g., Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 L. & POLY . Q. 7, 19-21

20 (1986).

E.g., Leonard L. Riskin, Understanding Mediators Orientations, Strategies, and Techniques: A22

Grid for the Perplexed, 1 HARV. NEGO . L. REV. 7 (1996) (hereinafter MediatorsOrientations) (noting that amediators interventions can be understood as choices between more facilitative or more evaluative interventions,and between a broader or narrower definition of the problem to be addressed.) and Leonard L. Riskin,Decisionmaking in Mediation: The New Old Grid and the New New Grid System, 79 NOTRE DAM E L. REV. 1 (2003)(hereinafter Decisionmaking in Mediation) (suggesting a move away from the facilitative-evaluative spectrum indescribing a mediators intervention, replacing it with a spectrum with one that runs from directive to elicitative,instead. The new, new grid retains the broad to narrow scale in describing a mediators choices for how tounderstand and address the dispute or conflict.)

E.g., ROBERT BARUCH BUSH & JOSEPH FOLGER, THE PROM ISE OF MEDIATION (2D ED . 2005)23

(describing the most important goal of mediation and mediators to be Transformative rather than problem solving. Under this approach, the mediator does not seek a resolution of the dispute, but instead focuses on increasing each

incidents. In my view, the conflicts do not arise simply from personal or stylistic differences

between specific mediators and lawyers. They do not result from mediators and lawyers each

trying to seize personal control of the situation. Instead, they exemplify more fundamental

mental frameworks or schemas of conflict. The incidents can arise from basic differences20

between the ways the lawyers and the mediators understand conflict and what to do about it. For

lawyers and mediators to work in concert, they need to share the mental frameworks and

schemas of the other.

II. THE MENTAL FRAMEWORKS OF MEDIATION

Mediation theory has exploded with a mind-boggling diversity of concepts and views. Is

mediation bargaining or therapy? Do mediators handle the narrow issues that the parties21

present to them, or the broader range of issues, needs and interests that have driven the parties

into the dispute? Is the goal of mediation to bring the disputing parties to agreement, or just to22

enable them to understand the other party better and become more effective in handling their

concerns themselves?23

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partys empowerment to solve their problems more effectively on their own, and each partys recognition of theother partys situation, concerns and perceptions.)

GARY FRIEDMAN AND JACK H IMM ELSTEIN , CHALLENGING CONFLICT: MEDIATION THROUGH24

UNDERSTANDING (2008).

I think this welter of voices can best be understood in terms of four distinct mental

models or cognitive frameworks of mediation:

(i.) Distributive negotiation through positional methods;

(ii.) Value-creating negotiation through interest-based methods;

(iii.) Relationship; and

(iv.) Understanding: A variety of methods or approaches that focus on increasing the

parties understanding of themselves, the others in the conflict, and the situation. (For

lack of a single term in the literature, I will call this fourth category Understanding,

although it is not limited to the specific, so-named Understanding method developed

by Gary Friedman and Jack Himmelstein. ) 24

Each of these is exemplified by the mediators work in one of the incidents described

above. And in each incident, the conflict arose from the fact that the lawyer was operating in a

distributive framework with a highly positional method, while the mediator was operating in a

different framework (in the latter three) or in the same framework but at a different pace (the

first incident.) The question for lawyers in mediation is whether, in their role as lawyers for

clients, they can inhabit any or all of the various frameworks that mediators use, or whether they

are limited to the distributive framework and the competitive style that each lawyer exemplified

in the incidents.

By mental frameworks I mean something different from techniques or methods. The

characteristics of the four frameworks dividing the pie through distributive gamesmanship,

enlarging the pie with new options, considering and trying to improve the relationship between

the parties, and giving the parties greater perspective about each other are familiar to mediators

and students of mediation. But are these simply different techniques, used by mediators in a

haphazard fashion, according to personal preference or habitual response? Do mediators pick

them for instrumental reasons, such a focusing on relationship to soften a partys resistance to


Leonard Riskins grids, whether old, new old, or new new, conceptualize mediator choices of25

action as sliding along several continuous scales, with no obvious breaking points. His model of a 2 X 2 matrixalong two scales tells us about differences in quantity, but does not help us decide whether mediators actions differin quality, or when differences in quality occur. See Decisionmaking in Mediation, supra note 22.

This kind of mental structure is sometimes called schema, or script. For a study of mediator-26

like ombudspersons, using the concept Working Mental Model to describe the schematic mental blueprints thatpractitioners use, see Kenneth Kressel & Howard Gadlin, Mediating Among Scientists: A Mental Model of ExpertPractice (forthcoming in NEGOTIATION AND CONFLICT RES.)

See THE PROM ISE OF MEDIATION , supra note 23.27

concessions in their negotiating position? Are the techniques best understood as arrayed across

one or two continuous scales, with a mediator picking and choosing along the scale as seems

appropriate? 25

As I use the term, mental frameworks are more distinct than that. I treat each as a

relatively coherent mental system. It tells the person operating within it mediator, lawyer, or

disputant what kinds of questions, statements, and interactions with the other disputing parties

make sense. Sometimes, the framework will be apparent to an actor, who will make a26

conscious decision to say or so something appropriate for the framework she intends to use.

Someone using a Relationship framework, for instance, may say to herself that she needs to

know more about the parties relationship, and will consciously decide to seek relevant

information. Much more often, however, the mental framework operates in a tacit, unarticulated

way. Information about relationship will just seem more pertinent to an actor whose thinking is

structured by the Relationship framework. The actor will want to seek out more information

about relationship without making a conscious decision to do so, and perhaps by not even being

fully aware of what she wants to know or why. The Transformative approach fostered by

Baruch Bush and Joseph Folger, (a part of my Understanding framework) is challenging to27

many mediators and lawyers precisely because it engages a different framework of thinking

both explicit and tacit from the Distributive framework that many mediators and most lawyers

inhabit. Transformative mediators refuse to make resolution of the dispute the goal of the

process or the measure of success. Whether they consciously articulate it or not, it is obvious to

them that the terms of possible resolution are of minimal importance. At most, the terms

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Id. at 45 [W]e do not believe that [the different approaches to mediation] can be combined or28

integrated, at either the theoretical or practical levels. In effect, each of these theories represents a coherentviewpoint that guides ones view of both the meaning of conflict and the value of intervention. The coherentviewpoint does more than guide the mediators view of meaning and the value of intervention. It also guides, oftentacitly, a mediators specific actions and statements in the mediation itself.

See, as examples from a huge literature, THE MANAGER AS NEGOTIATOR, supra note 13 and29

GETTING TO YES, supra note 14, as well as BEYOND W INNING, supra note 6, and BARGAINING FOR ADVANTAGE,supra note 6.

See MEDIATION REPRESENTATION supra note 4 and Lawyers Representation of Client in30

Mediation, supra note 3.

become relevant late in the process, and arise from the parties own decision to use their greater

empowerment and recognition to structure a specific plan for what to do. For people operating

in a Distributive mental framework, however, it is equally obvious that one needs to pay

attention to possible terms of resolution from the very beginning of the process. The

Understanding framework, as exemplified by the Transformative model, is qualitatively different

from the Distributive, Value-creating and Relationship frameworks.28

The four mental frameworks, as I describe them, are not watertight buckets, each

excluding the contents of the other. Many specific statements or actions can appropriately

appear in several of the frameworks. For instance, as just noted, a mediator thinking in a

Distributive framework may focus on the relationship of the parties. It might be useful to

encourage the parties to modify their settlement positions and elicit more distributive

concessions. But a mediator thinking in a Relationship framework would focus on the parties

relationship for intrinsic reasons, not just because the focus is useful for other purposes. For

such a mediator, the flaws in the parties relationship and communication would be seen as the

key issue.

The Distributive framework is well understood. One might even call it the default

framework, the model of conflict and conflict resolution that first comes to mind when people

think about the topic. And it fits well with disputed legal claims, since legal claims primarily

focus on whether one of the parties is entitled to take something from the other. The Value-

creating framework is also well developed, both in the field of legal negotiation and, more29

recently, in guidance for lawyers representing clients in mediation. The Relationship30

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To examine the role of repairing or improving relationships in actual mediations, Dwight Golann31

surveyed participants about relationship issues in their mediations. He found that relationship repair was articulatedas one goal, but usually not achieved in practice. It became secondary to other issues and other dynamics in themediation. I suspect that relationship issues were shunted aside because the participants were operating in either aDistributive or a Value-creating framework, and the relationship issues simply could not keep their place in the talkand decision-making that occurred. This remains a suspicion, since Golanns account does not, and could not,provide the kind of detail about the mediations that would be necessary to examine this issue. Dwight Golann, IsLegal Mediation a Process of Repair--or Separation? An Empirical Study, and its Implications, 7 HARV. NEGOT. L.REV. 301 (2002).

framework may be more difficult to see as a separate cognitive entity. By Relationship I mean31

something more than whether the parties are friendly or cordial or hostile to each other, or

whether they have some formal bond, such as belonging to the same family or same

organization. The concept encompasses more generally issues of how engage and communicate

with each other, as well as what expectations they may have about how each should relate to the

other. It can be an aspect of the latent causes of conflicts, when parties hostility and

dysfunction arises from aspects of their communication and relationship that they do not

perceive or understand. Relationship issues may be more difficult to understand as separate

cognitive framework because the parties relationship can appear in Distributive, Value-creating

and Understanding frameworks, as well. A mediator working in a Distributive framework, for

instance, may be concerned with how the parties are relating in the mediation itself: If they are

more comfortable with each other, or are communicating better, they should be better able to

make the kind of reciprocal concessions required to find a mutually agreeable settlement

position. Similarly, if the parties in a Value-creating framework are seeking to construct an

ongoing arrangement that will benefit both, the quality and effectiveness of their future

relationship will have an important bearing on the success of their agreement. In each of these,

the relationship issues are understood secondary to the dynamics of the primary framework,

important in an instrumental way to make the work in the primary framework more effective.

The Relationship framework, by contrast, gives primacy to understanding and dealing with the

parties relationship. As an example, a mediator who seeks to identify and resolve a latent

conflict between the disputants rather than distribute assets, increase mutual value, or enhance

mutual understanding seems to me to be working in a Relationship framework. The task of

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Psychologist Kenneth Kressel has described as strategic a style of mediation in which the32

mediator posits that the apparent conflict arises from a latent one, and makes it her task to bring the latent conflict tothe surface and change the expectations the parties have of each other and the way they communicate. KennethKressel, The Strategic Style of Mediation, 24 CONFLICT RESOL. Q. 251, 252, 257 (2007) ([T]he focus of themediators attention and activity [in the strategic style] is on ascertaining wehther there is an underlying or latentcause that has fielded the parties conflict. The mediators intervention [in a child custody dispute] hinged onsurfacing a maladaptive communication pattern between the father and his children.) Kressel does not categorizethis style as drawing on a relationship framework, but I believe it appropriately fits within the relationshipframework I am describing here. The relationship framework gives special attention to problems in the relationship,whether those problems are patent and known to the participants, and latent and only suspected by the mediator.

The tension between splitting apart things that should be kept together, and lumping together33

things that should be kept apart, hovers over any effort to classify. A modern example is bird taxonomy, which isundergoing substantial change, as some bird species are split into several new species (increasing the ability ofbirders to add to the size of their life lists) and lumping together as one species groups of birds that had formerlybeen known as separate. See http://www.wildbirds.com/dnn/IdentifyBirds/BirdTaxonomy/tabid/109/Default.aspx(last visited January 3, 2008).

See note 24 supra.34

See note 23 supra.35

JOHN W INSLADE & GERALD MONK, NARRATIVE MEDIATION: A NEW APPROACH TO CONFLICT36

RESOLUTION (2000) (describing conflict as growing out of the differing and competing stories, or narratives, thateach party uses to explain to themselves and to others what has happened, and further describing the mediation ofconflict as helping the parties develop a new narrative or story about themselves and the situation that will enablethem to do something appropriate and effective about the conflict and move on.)

Cheryl A. Picard & Kenneth R. Melchin, Insight Mediation: A Learning Centered Mediation37

Model, 23 NEGOTIATION J. 35 (2007) (describing a method which seeks to learn more about how the conflictthreatens what is important to each party, permitting a shift in attitudes and space for creative action.)

the mediator is to reveal the latent conflict and resolve it. Getting the parties to a common32

position, or finding new, mutually beneficial options, are not what the Relationship mediator is

about.

Some readers might feel that I have improperly split a single varied mental concept of

mediation into four distinct frameworks. Others may protest that I have improperly lumped

together mediation styles that should be kept quite distinct. This is particularly true for the33

fourth category: Understanding. Not only does that include the Understanding model of Gary

Friedman and Jack Himmelstein and the Transformative model of Baruch Bush and Joseph34

Folger, it also includes such approaches as Narrative Mediation and Insight Mediation Each35 36 37

of these has features, goals, and operating assumptions that are different from the others. But for

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See THE PROM ISE OF MEDIATION , supra note 23, at 53 ([P]arties who come to mediators are38

looking for and valuing more than an efficient way to reach agreements on specific issues.) and NARRATIVEMEDIATION , supra note 36, at 90 (At the end of the mediation process many people are in a stronger position tonegotiate the details about settling the dispute themselves.)

ROGER FISHER & DANIEL SHAPIRO , BEYOND REASON (2007).39

our purposes, they share a key conceptual feature that distinguishes them from the Distributive,

Value-creating and Relationship frameworks: an emphasis on improved reciprocal understanding

between the parties. They treat this goal as an intrinsic one, not as an instrumental step to some

other goal such as reaching an agreement. They view the parties perception of the conflict as

malleable; through the mediation the parties may come to understand their conflict in a different

way, a way that comes from their own insight, rather than from the insights of the mediator.

These approaches also minimize the mediators direct role in solving the dispute, and maximize

the opportunity and responsibility of the parties to develop their own resolution. A Distributive

mediator might unilaterally develop a compromise position and influence the parties to accept it.

A Value-creating mediator might unilaterally see options for mutual gain that the parties have

not yet recognized, and use the mediation as an occasion to tell it to the parties. A Relationship

mediator may understand the parties latent conflict and show them what they need to do to

resolve it. But the mediators of the Understanding framework let the parties develop for

themselves ideas for how to move to a better future, and even to decide whether to resolve the

dispute or not. The Understanding framework has important similarities to the Relationship38

framework. In the Understanding approaches, the conflict is seen to arise in part from features

of the parties relationship, and the conflict itself contributes to distorted or partial

communication. But the problems with the relationship are not the key feature of the

Understanding framework. For this framework, improving understanding will enable the parties

to improve or reshape their relationship as they decide.

The recent book by Roger Fisher and Daniel Shapiro about handling emotions in39

negotiation provides a vivid example of the difference between Distributive, Value-creating and

Understanding frameworks. It recounts the story of Fishers advice to the buyer of a radio

station who was stymied by the refusal of one of the co-owners to sell. Fisher asked the buyer

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Id. at 126.40

what he knew about the recalcitrant co-owner. From the small amount of information available

nobody had asked the co-owner he inferred that the co-owner had roots in the community, a

growing family, and wanted to continue his work. Fisher advised the buyer to offer the co-

owner a position with the station after the sale, together with an enhanced sale price, because he

needed to have the co-owner take a smaller share of the business. The co-owner accepted and

the deal went through. The buyer was pleased, and gleefully told Fisher that the seller fell for

the negotiation move. The buyer understood the deal as a distributive, positional one; he40

won by making the more clever positional move to induce the seller to agree. Fisher, however,

understood the deal as a Value-creating one. Using underlying interests, he constructed terms

continued work at the station that were high gain to the seller but low cost to the buyer and

thus created more overall value than any single cash amount would have done. For someone in

an Understanding framework, however, even this arrangement would have been unsatisfactory.

It would have failed because the buyer never got it. He never understood how the situation

looked from the perspective of the seller. He never understood enough about the seller or

enough about his own perceptions and bargaining style that had kept the parties from being able

to construct the appropriate sale terms. From an Understanding framework, the fact that the sale

was successfully accomplished would be secondary to the increased understanding that

permitted the parties to get there themselves.

I find this four part division plausible because it corresponds to four different kinds of

goals that can arise for someone in conflict. I do not mean legal conflicts. Instead, I refer to the

variety of ordinary conflicts that people regularly face in life. The conflicts might have legal

aspects, or might be expressed as legal claims or acted upon in a legal forum. But the ordinary

goals can exist, and usually do, regardless of whether one expresses them as legal issues.

First, someone experiencing a conflict may wish that their opponents in the conflict

would give in to them, taking the action or providing the thing that the first person wants. The

person needs the action to eliminate or at least assuage her sense of conflict or loss. Most

commonly, this would require the opponent to come around to the first persons position. The

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Mary Parker Follett, Constructive Conflict in PROPHET OF MANGEM ENT: A CLELBRATION OF41

WRIITNGS FROM THE 1920'S 77 (Pauline Graham ed., 1995).

position might be a tangible object, or an amount of money, or ceasing an action that the first

person finds troublesome. This is the kind of goal sought by distributive, positional bargaining;

if you cant get a complete concession from the other party, at least you can seek one that gives

you as much of what you want as possible. It can also include nondivisible things, such as

bringing the other party around to the understanding that you are right, or that you deserve the

thing in question, although total victories such as this are less common in conflicts than

compromises.

The second kind of goal is to seek some kind of way to get what you want while

minimizing the loss or concession that the offending party must suffer to give it to you. A key

question for this kind of goal would be something like, Isnt there some way you can give me

that, or do that, without your having to hurt yourself to do it? Mary Parker Follett, one of the

founders of our modern understanding of conflict management, asked this kind of question when

she solved the problem of whether to open a library window by opening a window in an adjacent

room, thus giving the other library patron the fresh air he wanted but not imposing an unwanted

draft on her. That kind of problem solving goal seeks, as does our second framework, a value41

creating solution.

The third kind of goal focuses on relationship. Finding themselves in conflict about

some object or action, people might be troubled by what the disagreement is doing to their

relationship. Their goal would be to stabilize or repair their relationship. We recognize this

more in family situations, including divorces, inheritance disputes, family businesses, and the

like, as parties seek to get past the conflict for the sake of maintaining some form of relationship.

We might expect to see it less often in workplace relationships, or between people with a service

relationship. We might see it even less, if ever, in conflicts between strangers. But even

between strangers, the parties may develop a relationship with regard to the conflict they

perceive between them, and wish to relate to each other in a way that does not fan the flames.

It is this disturbance of relationships that leads me to place apologies in the category of

relationship issues. Apologies, in the fullest sense of the term, involve reconstructing a

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See NICHOLAS TAVUCHIS, MEA CULPA: A SOCIOLOGY OF APOLOGY AND RECONCILIATION 3542

(1991) (Once the symbolic overture has been made [by offering an apology], the victim alone holds the keys ofredemption and reconciliation.); Carl D. Schneider, What it Means to Be Sorry: The Power of Apology inMediation, 17 MEDIATION Q. 265 (2000).

Jennifer K. Robbennolt, Apologies and Legal Settlement: an Empirical Examination, 102 M ICH . L.43

REV. 460 , 506 (2003). ( Full apologies were seen as mitigating potential damage to the relationship . . .)

For an example of using increased mutual understanding as a way to improve functioning in a44

work setting, not limited to situations with a recognizable conflict, see ROBERT KEGAN & LISA LASKOW LAHEY ,HOW WE TALK CAN CHANGE THE WAY WE WORK: SEVEN LANGUAGES FOR TRANSFORM ATION (2001) (explaining asystematic method of increasing both self understanding and understanding of others so as to overcome interpersonaland intrapersonal obstacles to more satisfactory functioning).

relationship between people. One person acted in a way that caused harm and/or an affront to

another. By the apology, the harm-doer seeks to correct the imbalance between them that the

conduct created. At their fullest, apologies recast the balance of power between the parties. By

his offending action, the offender has exercised unwarranted power over the other. But by

offering an apology, the offender reverses the power relationship. The recipient of the offense

now has power over the offender: the unconstrained power to decide whether to forgive. T h i s42

relationship quality is most apparent in full apologies, which have been called apologies of

responsibility.43

Finally, people in conflict might find themselves asking what could have gotten into the

other person that resulted in their taking such offensive action. They might be mystified and

frustrated by the fact that the others in the conflict seem so unable to understand things from

their perspective. Or they might even be a little surprised or disappointed by their own anger or

stubbornness, or sense of helplessness in the conflict. Their goal in this context would be to

have the others understand them better, and perhaps to understand the others better, as well:

They seek understanding.44

These feelings and goals are part of our normal social lives. They may seem foreign to

formal disputing. But, as many mediators know, the ordinary dynamics of conflict do not drop

away when a dispute takes on the formal attributes of a litigation or mediation. The more

structured and formal conflict carries a cloud of ordinary social conflict dynamics with it. The

conflict management frameworks I have described operate in mediation for the same reasons and

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in the same way as they operate in unmediated, informal conflict situations.

We now are in a position to see what it would take for lawyers to do their work in concert

with mediators, rather than in opposition to them. Drawing on their nonprofessional repertoire

for dealing with conflict, they could align themselves with the framework that the mediator is

using. To return to the incidents with which we began the discussion, we can see how the

lawyers could have entered into the framework used by the mediator and permitted or

encouraged the exchange of information that was pertinent to that framework, rather than

blocking it. The lawyer in the first example could seek to get through the exchange of

concessions and the modification of settlement positions quickly and fairly, finding a way to a

reasonable middle ground without delay and posturing. The lawyer in the second example could

work assiduously to articulate the underlying needs and interests of all the parties, and then work

creatively to find ways to meet the needs of one without sacrificing the needs of the other. In the

third example, the lawyer could welcome a fuller account of the parties relationship, with an eye

to understanding how repairing or improving the relationship might provide a path towards

resolution. And in the fourth incident, the lawyer could endorse a face-to-face encounter

between the employee and his or her immediate supervisor, under the guidance of a mediator

working in the Understanding framework, to see if a change in the antagonists narratives, or

their mutual (mis)understanding, or insight, or empowerment, could have released them from

their conflict.

Suggesting that lawyers engage in these alternative frameworks carries some important

questions. Can lawyers even do these things? Is it cognitively possible for lawyers who have

been trained in the rigorous forms of legal reasoning, and who think about their clients

problems that way every day, to work within these alternative mental frameworks as well? The

question is particularly challenging because the framework are not simply points along a

continuum, allowing a lawyer to slide up or down as one would tune a radio. Instead, each is

qualitatively different from the other, entailing a different mind set. Moving from one to another

might be more like an actor taking on diametrically different roles on consecutive nights in the

theater, magnified by the fact that each role had to be played extemporaneously, without

memorized lines. Some remarkable kind of shape-shifting seems to be called for. I will take up

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Leonard Riskin, Mediation and Lawyers, 43 OHIO ST. L. J. 29 (1982).45

the question of whether lawyer can work within these frameworks.

Beyond the question of whether lawyers can mentally do this, we face the question of

whether such differing mental frameworks are ethically permissible. May lawyers operate

within these frameworks? Or do the ethical rules and a proper sense of role require lawyers to

remain within the distributive, positional mode exemplified by the lawyers in the examples?

The ethical question has another dimension as well. Even if lawyers may operate within

differing mental frameworks, should they do so? Or are they free to treat the possibilities as no

more than interesting ideas, something permissible for others to do, but not something they need

not bother themselves about?

Finally, we need to address the question of how lawyers can implement these mental

frameworks in their work in the mediation room. The potential ability to do so, the ethical

permission to do so, and even an ethical imperative to try, will amount to little unless the lawyers

can take actions that will bring the framework into the room. That is the last topic I will take up.

III. CAN LAWYERS THINK LIKE MEDIATORS?

We have many reasons to think that lawyers, representing clients in an adversarial

dispute, cannot think or act in ways that will craft new options for mutual gain, or will improve

relationships, or enhance self knowledge and knowledge of others. Some of these relate to the

cognitive and behaviorial tools with which lawyers do their work. Some relate to the ways many

people deal with conflict much of the time.

At the beginning of our modern interest in mediation, Leonard Riskin reminded us that

lawyers think differently from mediators, and the kind of thinking that mediators do remains

invisible to most lawyers. They just dont see it. The four mental frameworks I have described45

in this article help us understand more clearly what that might mean. Legal reasoning is all

about mutually exclusive categories. The doctrines of law articulate the categories,

distinguishing legal rights from an absence of legal rights. Under the facts, the conflict situation

falls into one category or another. If the defendants actions and the plaintiffs situation fall

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See generally, Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: the Structure46

of Problem Solving, 31 UCLA L. REV. 754(1984).

CHARLES T ILLY , WHY? 15 (2006).47

within the category of a violation of the plaintiffs right, the plaintiff is entitled to a court-

ordered remedy. If the actions and situations do not fall within that category, the defendant is

free to proceed on her way with no more interference. As a logical matter, in each situation the

person with the complaint either falls within the category of legal right or does not.

Because of its binary categorical nature, legal reasoning, including the problem of

proving a legal claim, bears a strong structural similarity to the distributive concept of

negotiation. In litigation, if a legal claim is on the plaintiffs side of the divide, it cant be owned

by the defendant. In distributive negotiation, if part of an asset is negotiated to the claimants

side, it has been lost by the other claimant. Consequently, lawyers may have a difficult time

understanding how their client might give something to the other side without losing an

equivalent value of what is given, or, conversely, how they might ask the other side to give their

client something that would be a gain for their client without being an equivalent loss to the

other side.46

The sociologist Charles Tilly describes a related conflict of frameworks that might

prevent a lawyer from being able to think beyond the distributive model of dispute resolution.

He points out that, when faced with trouble or an interpersonal problem to be dealt with, people

respond in one of four qualitatively different modes of talk. These are Convention, Stories,

Codes, and Technical Reasons. Although my description necessarily oversimplifies Tillys47

subtle analysis, conventions are the kind of brief statement that we often make in a situation of

conflict, such as change is always hard, or hell get used to it. Stories are more extended

narratives, explaining what has happened and perhaps what should happen, often with a moral

implication or even an explicit moral point. Codes are the invocation of specialized sets of rules

and standards for dealing with the conflict. Technical Reasons, such as an engineers

explanation of why the construction cannot be completed without a redesign and greater

expense, rely on the objective determinations of technical disciplines.

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Id. at 96ff.48

Id at 108-114.49

See generally Mark Umbreit et al., Restorative Justice in Action: Restorative Justice in the50

Twenty-first Century: a Social Movement Full of Opportunities and Pitfalls, 89 MARQ. L. REV. 251 (2005).

Malcolm Gladwell, Heres Why, THE NEW YORKER, April 10, 2007, available at51

http://www.newyorker.com/archive/2006/04/10/060410crbo_books.

Jeff Kichaven, Apology in Mediation: Sorry to Say, Its Much Overrated, available at52

http://www.mediate.com//articles/kichavenJ2.cfm.

Lawyers address problems through Codes. They rely on legal reasoning which, as Tilly48

describes it, is qualitatively different from conventions and stories. (In Tillys analysis, doctors

also use their codes, such as codes about differential diagnosis, to handle the problems that face

them. ) While the Distributive mediation framework is congruent with the logical structure of49

lawyers codes, the other three mediation frameworks are more in keeping with Convention and

Stories as ways of dealing with conflict. In Malcolm Gladwells insightful account of a

mediation between a purse snatcher and his victim, he uses Tillys categories to show how the

interchange between the two comes to a satisfactory fruition when they change their mode of

talk. The mediation was part of a restorative justice session, held between the victim and the50

defendant after the defendant had been found guilty but before he was sentenced. It was also

attended by the victims husband, and by the defendants partner and their infant child. The talk,

Gladwell notes, avoided the code talk of the law, and instead flowed into story telling that

elucidated cause and effect, with moral implications.51

We can see a similar clash of types of talk in Jeff Kichavens account of a mediation

between a bank customer and a bank that had unwittingly destroyed the contents of the

customers safe deposit box, which may have included personal memorabilia such as love letters

or a lock of hair. The customers husband and co-renter of the box had died and the bank had

been unsuccessful in trying to find his widow. As mediator, Kichaven suggested that the bank52

acknowledge the pain that its destruction of the boxs contents had caused, and apologize,

without admitting liability. The banks lawyer would not do so. Its lawyer stonily asserted that

the bank had no liability under the law. Although Kichaven did not explain it this way, with the

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See WHY? supra note 47, at 22.53

help of Tillys categories of talk we can see that he was trying to move the conversation from

one form to another. While the lawyer was speaking in Code, Kichaven tried to turn the

conversation to Conventions (such as The bank values its longtime customers and is distressed

when things go wrong for them. or Unfortunately, things sometimes slip through the cracks in

a bureaucratic organization, and were sorry for that.) or maybe to Stories (such as explaining in

some detail all the steps the bank took to keep this from happening and why its procedures,

which are usually beneficial, caused an unforeseen loss in this circumstance). The lawyer would

not move with him. It is noteworthy that in Gladwells story, by contrast, there was no lawyer in

the room, and thus no one invested in explaining things through Codes.

As strong as the tendency is for lawyers to think and talk in binary, either-or terms, or to

talk in Codes rather than Conventions or Stories, these attributes of lawyerly thinking do not bar

lawyers from entering into the Value-creating, Relationship or Understanding frameworks.

First, Tilly notes that when we give explanations, we do not limit ourselves to one mode of talk.

Several or all of them can be implemented over a single effort to explain, understand, and

justify. I will assume that, when they are acting in their personal roles, rather than their53

professional ones, lawyers use Conventions and Stories just as other people do. While their use

of Conventions and Stories might be affected or reduced by their professional love of thinking in

Codes, it isnt eliminated. Lawyers may not want to use Conventions and Stories while acting as

lawyers, but there is nothing in the modes of talk, as Tilly describes it, that would prevent them.

More importantly, Tillys account of Codes may understate the degree to which lawyers

actually use Conventions and Stories as part of their work as lawyers. When lawyers are

assessing the scope and effect of a precedent, for instance, they may use convention-like reasons

to explain themselves, such as discounting a case because its author is a known judicial maverick

whose opinions do not carry much weight. Similarly, negotiation talk, through which most cases

are resolved, is filled with conventions about the negotiation process itself, even if the

underlying legal issues need to be addressed with legalese, i.e., Code talk. For instance, a lawyer

may refuse to give a new settlement proposal because she does not want to negotiate against

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See, e.g., ANTHONY G. AM STERDAM & JEROM E BRUNER, M INDING THE LAW 110-111 (2000)54

(Law lives on narrative . . . the law is awash in storytelling. . . . questions and answers in . . . matters of factdepend largely upon ones choice (considered or unconsidered) of some overall narrative as best describing whathappened or how the world works.) (emphasis in original)

Dedre Gentner, et al., Learning and Transfer: A General Role for Analogical Encoding 95 J.55

EDUC. PSYCHOL 393 (2003).

herself.

Beyond such conventions, stories and story-telling often play an important part in

lawyers formal talk in the courtroom. Narratives are stories with beginnings, middles, and ends,

with accounts of a trouble or disruption, and with moral implications about the trouble and the

way to handle it. Effective trial lawyers use narratives in this kind of form to present cases to

juries, judges and other adjudicators. If anything, lawyers can explain why in Tillys sense54

of the term with greater facility and elaboration by using narratives than simply by using

codes. Tillys categories help us understand the deep and qualitative differences that exist

between the four cognitive frameworks of mediation, and thus shed light on why it may be

difficult for lawyers to move beyond the Distributive framework. But Tillys categories do not

establish that the mental arsenal of lawyers prevents them from using the frameworks that are

needed for Value creating, Relationship and Understanding ways of mediating.

This is not to say that it is easy for lawyers to shift from their familiar Distributive

framework to one of the others. Negotiators have a difficult time implementing a value-creating

mode, even when the opportunity arises. Researchers have found, for instance, that when

negotiators were presented with problems that could be solved either by compromises, by trade-

offs, or by contingent agreements that actually added value (by capitalizing on the

contingencies), they tended to miss the contingent, value-adding agreements and rely on

negotiating for compromises, unless they had first been given negotiation training that used

guided analogies that demonstrated how to find more value through contingent agreements.55

Other negotiation scholars have noted that people tend to negotiate in a value creating way only

when they have an expectation that strictly distributive bargaining will cost too much, or that

value creating negotiation will be more likely than distributive bargaining to produce a desirable

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DEAN G. PRUITT & SUNG HEE K IM , SOCIAL CONFLICT:ESCALATION , STALEMATE, AND56

SETTLEMENT 48ff.(3D ED . 2004). (Problem solving negotiation is more frequently used when it is perceived as morefeasible. The perception of feasibility depends on a variety of factors, including the negotiators faith in his ownproblem-solving ability, thinking in positive-sum, rather than constant sum, terms, and the other negotiatorsperceived readiness for problem solving.)

The Restatement of the Law Governing Lawyers requires that lawyers exercise the competence57

and diligence normally exercised by lawyers in similar circumstances. RESTATEM ENT OF THE LAW GOVERNINGLAW YERS 52 (OFFICIAL DRAFT 2000) (hereinafter RESTATEM ENT).

The American Bar Associations Model Rules of Professional Conduct have a similar requirement: Alawyer shall provide competent representation to a client. MODEL RULES OF PROFL CONDUCT R. 1.1. (hereinafterMODEL RULES). The Preamble to the Model Rules notes that [a]s an advocate, a lawyer zealously asserts theclients position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to theclient but consistent with requirement of honest dealings with others.

result. Lacking that expectation in a particular situation, they will tend to use a distributive56

framework and positional methods instead.

Thus, we cannot expect that lawyers will easily move away from the Distributive

framework and bring themselves into collaboration with mediators who are operating in one of

the other frameworks. But the obstacles to their move do not arise from something distinct about

their lawyerly thinking. They are the same obstacles that anyone who reacts to conflict in a

distributive manner would need to deal with.

IV. MAY LAWYERS THINK LIKE MEDIATORS?

Even if there is nothing in lawyers mental architecture that would keep them in

opposition to mediators, their ethical obligations might present obstacles. As agents for their

clients, and as professionals subject to the ethical standards of their field, they are obligated to

act diligently and loyally in pursuit of their clients interests. Does this mean that lawyers are57

ethically bound to negotiate in a Distributive framework, using positional tactics to distribute the

maximum possible tangible value to their clients, regardless of the opportunities presented by

mediation? If so, lawyers would

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