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Mediation

Solving Disputes Outside of Court

Rebecca Netter '07 of Mamaroneck, N.Y., discovered early in law school that alternative dispute resolution was a perfect match for her personality and skills. She was inspired to apply to the popular clinic by her experience in the Negotiations Workshop taught by Janice Tudy-Jackson as well as by a lunchtime panel facilitated by Columbia Law School's mediation expert and clinical professor Carol Liebman.

At a mediation at the Harlem Community Justice Center, one of Rebecca's most interesting cases had all the elements of a situation that could be resolved outside of a courtroom. A man and woman who had served together on the board of directors of a nonprofit organization had had a falling out. The man had loaned property to the woman for an organizational activity. The property was accidentally destroyed. The woman had shown little regret for the destruction of the property, and the man felt disrespected and unrecognized for having tried to help the organization. As a result, he had sued her in small claims court.

"Mediation is often recommended in court for people who have had a relationship prior to the dispute," explains Rebecca. "When the court clerk offered it, they chose to give it a try."

The man was so angry, it was very hard to keep him in the room, says Rebecca, but it turned out that money was the least of his concerns. He really wanted to feel appreciated. Working with Rebecca, mediation student Patrick Rideout, and clinical instructor Chris Stern-Hyman, the parties agreed to a settlement in which the woman agreed to pay the man half the value of what he had loaned. He, in turn, pledged the money back to the organization.

"We were able to emphasize their commonalities and tapped into the idea that they are part of the same community and have shared goals that can be better achieved if they can work together," says Rebecca. "At a certain point, the mediators dropped out of the discussion, and the two of them continued it together. It was extremely successful."

Listening for Clues

Students in the mediation clinic learn to listen very, very closely to pick up on little "gifts"—as Rebecca calls the clues to possible motivations that parties often reveal amid their anger and frustrations. Skills like reframing and summarizing individuals' concerns enable mediators to let parties in on one another's feelings. Students establish their legitimacy with the parties through their professionalism, respect for the parties, and genuine willingness to listen and learn about the dispute. Rebecca says that people in court have very much appreciated students' taking the time to talk—and listen—to them.

"Often people go to court not only because of money but because they feel hurt and need to exert their rights." says Rebecca. "As mediators, we're trained to pick up on their needs and frame them in a way that opens up the conversation." She adds that mediators can even include language in an agreement specifying that you can't slam the door in someone's face or talk disrespectfully to them.

Rebecca has found her instructors Chris Stern-Hyman and Dina Jansensen particularly inspiring because they have made careers as mediators, and she hopes to forge a career doing the same.

Advocating for the Process

It was an interest in labor and employment litigation that led Kaycee Sullivan '06, of Reno, Nev., to join the Mediation Clinic. That interest had been cemented when her older brother returned from Iraq, where he had served with the National Guard, and found his employment terminated. Although the jobs of military veterans are guaranteed by law for one year after their return, Kaycee's brother had been a contract employee, and his contract had ended upon his return. Although Kaycee discovered that the law did not support her brother's claim, the process of advocating for him and having the case resolved deepened her desire to learn mediation.

"I'm interested in litigation as a process of resolving disputes by advocating on behalf of one party," says Kaycee. "But mediation is also very intriguing, because as a mediator you become an advocate for the process of resolving conflict, rather than for any particular party."

Even if a preexisting relationship between parties is not strong, mediation can help create a settlement plan that works for both parties, such as a payment plan that is more flexible than a judge might have the power to order. Kaycee and her teammate Vinicius Prado, an LLM student from Brazil, settled such a case, which began in January 2006 with two parties in Manhattan Small Claims Court.

The complainant's car had been hit by another car. He had gone to an expensive car dealer for the repairs, and the defendant's insurance company agreed to reimburse him less than half of what it had cost him to repair his car. The complainant therefore wanted to sue the insurance company of the man who had hit his car.

On the first day of mediation, the parties were unable to reach a resolution, and a second mediation had lasted merely two minutes when the parties decided to go to trial. But four months later, on the brink of the trial, the complainant asked whether he could go back to mediation. Kaycee and Vinicius, who happened to be in court that day, were only too happy to help.

"In the mediation, we did ‘reality testing' with each of the parties, trying to show the likely outcomes of a trial, without trying to impose our beliefs. The court attorney explained the law, which was helpful in trying to get the complainant to see that he was unlikely to get the entire amount of money he had sued the insurance company for through a trial."

"If the people have an ongoing relationship, you definitely focus on trying to preserve that," says Kaycee. "But if it's a conflict between a complainant and the defendant's insurance company, it's really just about money and what's fair."

In addition to honing her communication skills in the clinic, Kaycee says she also learned one of the most important skills of mediation—which is to maintain impartiality and appear to be unbiased even if you find one of the parties more sympathetic than the other. "You have to work very hard not to demonstrate that in any manner," she says.

Most importantly, the clinic enabled Kaycee to learn experientially, which she says is ideal for her, adding that, like Rebecca, the clinic has influenced her career plan: "I had planned on going into litigation and dispute resolution," she says, "but I have really loved the clinic and now I'm more open to the idea of being a professional mediator."