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Wednesday, March 23, 2011

The Good Wife Doesn’t Know Much About Mediation

Why the heck can’t TV shows get mediation right? I mean, if a comedy like The Wedding Crashers can do it, why not courtroom dramas? Fairly Legal has made a mockery of what mediation is about, but I expect USA shows to be silly. Now comes The Good Wife, and I usually expect better from them. I’m a mediator, and this kind of error hurts my feelings because the writers clearly don’t give a hoot about getting mediation right. Mediation is suddenly popular with writers, so why won’t they find out what really happens in a mediation session?

Getting it wrong

Here’s just some of the stuff I keep hearing on TV about mediation that’s glaringly stupid.

The mediator doesn’t get to decide what is a fair settlement. I keep hearing mediators in these shows saying things like, “I need to hear this evidence so I can decide what a fair settlement will be.” Huh? The mediator doesn’t decide diddly. The mediator helps the parties reach a settlement. The mediator can’t make any legal decisions, can’t decide what the damages are, can’t hear testimony, can’t tell the parties what to do. The mediator in The Good Wife said this and I almost threw a shoe at the screen. It’s cringe-worthy. The easiest fix in the world is to stop having your characters say such ridiculous things.

The mediator can’t demand they hear testimony or see any particular evidence. The mediator may sometimes be shown evidence or excerpts from deposition transcripts to help them understand the case and the issues. But they don’t get to order the parties around, don’t get to do their own investigation, and can’t demand that someone be present without the parties’ permission. In this episode of The Good Wife, one side didn’t want his son to testify. Since nobody can be present at mediation other than the parties, their lawyers, the mediator, and anyone the parties agree can attend, this was laughable. Stupid, stupid plot device. The lawyer could have just said that if it didn’t settle the son would be called. Such an easy fix.

The parties don’t storm out of a court-ordered mediation. In Fairly Legal, the mediator character has one side or both storm out within seconds of every mediation. Then she has to chase them down and talk to them at home or work or wherever. It’s laughable. If the parties are ordered into mediation, they can’t storm out. They’ll be held in contempt. Even if it’s not court-ordered, they usually have a minimum fee they’re paying the mediator – usually 2 – 4 hours. Clients like to get their money’s worth and will stick around for their minimum prepaid amount of time. Yeah, yeah, it’s probably visually boring to have the parties sit around a table. But a decent writer can liven it up. The two sides can break into caucuses, take smoke or lunch breaks and run into each other, whatever the camera needs to improve the visual without going stupid.

The mediator won’t refer to one side as their client. The mediator is neutral. They can’t represent one side or the other. Their firm can’t represent either side. They have to disclose any relationships with the parties or their attorneys to both sides and anyone can object if they believe the mediator won’t be neutral. The Good Wife didn’t do this, but they do it in Fairly Legal all the time. It makes me want to scream. Okay, sometimes it does make me scream.

Every trial lawyer in America knows when you get mediation wrong. So do all the mediators, all the judges, and every person who has participated in mediation. We’re talking millions of people who know when you get it wrong. Mediation can be interesting and it hasn’t been overdone like trials. Do use it in your stories, but do your research.


Michael E. said...

Although... don't arbitrators do at least some of those things? Might be easier to call the process binding arbitration and leave it there?

Alan said...

Yes, Michael arbitrators, like judges, hear evidence/testimony and then make decisions. Arbitration is sometimes a streamlined, expedited , more flexible version of a trial that can save time and money.

However mediators do NOT make decisions. Instead they facilitate dialog among the parties to encourage understanding. When such dialog leads to discovery of common ground and a mutually acceptable, voluntary agreement, the parties are more likely to accept/comply/implement because it was their own decision.

Another advantage for mediation, especially when there is an anticipated continuing professional or personal relationship among the parties, is that matters beyond standard legal issues of money and performance can be discussed, and agreements can include how to sustain and improve communication and the relationship.

Alan E. Gross (mediator and arbitrator-- but not simultaneously)

cissy said...

I am a mediator and a huge fan of The Good Wife.I was appalled to see an arbitration, mislabeled as a mediation. Mediation is a totally voluntary, respectful process in which the mediator acts as a neutral while hopefully helping the parties to flush out and crystallize their areas of agreement, disagreement and mutual interest. There is no 3"queen".

Donna Ballman said...

Hi Alan and Cissy. I'm glad you were as outraged as me. This post was about the first time I saw them make this mistake. I did another post about the most recent episode, which was just as bad: http://writereport.blogspot.com/2013/01/hey-good-wife-writers-mediation-is.html

Debra said...

As I watched the Good Wife last night and the use of mediation was discussed, I was thrilled. TGW is usually spot on in its depiction of most of the legal world. Not the Mediation of this Bankruptcy.

I guess my tip off should have been when the parties felt obligated to attend. In mediation, the parties volunteer to participate. Courts are ordering mediation more often, which by its nature is a difficult process to navigate when parties are forced to proceed, because they realize the value in 'requiring' the 'parties' to have a conversation, often left out of negotiations by and between representatives of the parties.

Mediation can and is a useful process for parties to employ in their conflict to resolve a dispute
on their own terms. Most people don't get this.

Mediation is a system where you have that difficult conversation and reach the ultimate resolution you and the other party find comfortable.

I know this is Polly-Anna-Esque thinking in a litigious society, but a good mediator can get the parties to a place where they see what is of value to them and what is of value to the other party and instead of going for the throat, recognize that real resolution lies somewhere in-between, respecting each parties position. Not necessarily agreeing, respecting and understanding. Key differences.

Out of respect and understanding amazingly often comes agreement. It has been my experience in my mediation practice of conflicts between people about animals. A more emotional subject matter is hard to imagine.

Alan put it beautifully, mediation enables the parties to address, "matters beyond standard legal issues of money and performance." That is clearly what was being discussed in The Good Wife. The characters love for their firm and their commitment to its protection were emotional not legal. If this was a mediation the 'mediator' would have reflected this back to all the parties. I am not going to address the need for all Nathan Lanes' desire for emotional reflection.

I wish screen writers would speak with mediators from several venues and get an understanding of the differing practice types. We all practice differently. That is the beauty of mediation. Yet the one overriding fundamental tool we all ascribe to is listening, reflecting and allowing for the parties to own the process. That was not even intimated here.

We must hold strongly onto our values about the process and our commitment to getting it right in the media in order to correctly inform the public.

And no Michael, in my opinion, the sole difference is not that one is a binding process.

Debra Vey Voda-Hamilton - former litigatior/current mediator

Unknown said...

Having been a mediator for nineteen years, I was saddened by the inappropriate depiction of mediation. The process shown in this episode was closer to binding arbitration, but even then I can't imagine any arbitrator worth his/her salt saying "I'm the empress." Aside from making herself look and sound ludicrous, that would likely have ended the process right there. And the Gavel?
Please try to get it right. Mediation is an extraordinarily valuable opportunity for people in conflict to explore meaningful resolutions, not only for the tangible aspect of the dispute, but also, where appropriate, for the relationship issues. And, most commonly, at a much lower cost than litigation.
Finally, to address a previous post suggesting that if the parties storm out of a court ordered mediation they'll be held in contempt. Mediation is always voluntary, even when court ordered. I work in the courts in Massachusetts, and have done hundreds of court ordered mediations. All the courts can do is order parties to show up, not to try, not to stay, not to participate. Either party can storm out or walk quietly out. As long as they appear, they've complied with the court order, and the mediator, bound by confidentiality, cannot even inform the court as to the reasons the mediation did not result in a settlement.