Mediations are a kind of disruptive innovation


Late this summer I found myself in Boston standing in the corner office of the senior partner of a law firm looking at something I did not expect.

He had gone to Harvard Law School, clerked for Breyer (when he was on the First Circuit), and was once a litigator at an elite Boston law firm. I stood looking at the black and white portrait on his wall – Mahatma Gandhi.

I had never seen that on the wall of a trial lawyer. A war room this was not.
Gandhi famously overthrew British rule of India not through war, but through non-violent protest, and my favorite act of his was drawing salt from the waters at Dandi (protesting a British law against this traditional Indian practice).

Gandhi’s approach to conflict held seeds of an idea articulated by a celebrated professor at Harvard Business School, Clayton Christensen, which, I think, reveals the value of mediation as a way to resolve disputes.

Let me explain.

Clayton Christensen is known for his paradigm shifting book, “The Innovator’s Dilemma.” He argues that incumbent businesses are “disrupted” by startups which have new, innovative business models which deliver better results to customers in a better way.

Think of Uber. It owns no cars and has no employees, but transports people in a better way than medallion-based cab companies with a business model based on the disruptive innovation of the Uber software. The incumbent cab companies cannot compete with Uber’s superior value creation.

I have been a trial lawyer for over twenty years. I enjoy the strategy, the contest of narratives in the courtroom, and the drama of who wins and who loses. But, as all trial lawyers know, when someone calls our office and is told we are in court, often we are simply waiting in the hallway for our turn to see a judge. And, trials are emotional, time-consuming, and deliver unpredictable outcomes. Sometimes I think litigation escalates the conflict and inflates the costs of resolving a dispute.

Is trial really the best way to solve a dispute?

A review of the Connecticut judicial branch statistics (they are online) helps answer the question: less than 5% of civil cases were resolved by trial in 2016/2017 (the most recent year available). Over 95% of cases were settled instead.

Trials are disappearing, but mediations are on the rise.

Mediations are a kind of disruptive innovation, an innovative model which delivers a better result to clients in a better way than trials.

Here are some reasons why:

Greater efficiency. The rituals of trial, the rules of evidence, and scheduling demands do not apply.

Candor. Nothing said in a mediation can be used as evidence at trial. Parties and lawyers are free to discuss their cases openly, concede what they must and have open discussions where they disagree.

Value creation. This element is lost at trials, where parties often seek scorched earth victories. Lost is the opportunity for value creation – delivering to your client her real interests, not her apparent positions. For example, a defendant in a civil case may wish for cost control, finality, and confidentiality. A plaintiff may seek privacy, certain payment, and less conflict.

Controlling the outcome. I have learned well that after closing argument, the case belongs not to me or to my opponent, but to the jury. But the parties decide whether and how to resolve a case at mediation.

I have heard some mediators say that if we settle the case and both sides are unhappy with the settlement, then we have reached the right result. I believe a better opening is, “You have an opportunity to create value for each other that is not possible at trial, and if I perform my role as a mediator well, each of you will be happy with the settlement.”

I believe this result is possible when a mediator helps the parties realize the opportunities listed above. I learned this from the lawyer I described above, at a one-week seminar in advanced mediation he offers (with others) at Harvard Law School’s Program on Negotiation. Once a trial lawyer, he is now primarily a mediator.

When Gandhi drew salt from the water, he was creating opportunities for his people not possible through violence. His act was, in a sense, a disruptive innovation.

And so is mediation.

Christopher P. Kriesen, November 29, 2018.

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