Jeffrey Krivis mediates complex employment, catastrophic injury and insurance cases at his Encino, Calif.-based firm, First Mediation Corp. See www.firstmediation.com. He teaches at the Pepperdine Law School/Straus Institute for Dispute Resolution, and is a member of Alternatives’ editorial board.
What’s the first thing you think about when you hear the phrase “civil justice?” The search for the truth, of course. In every litigated case, the pressure is on all the participants to search for the truth. The judge is empowered to assure fairness and truth. The lawyers believe in their cases and want the truth to come out. The clients feel righteous about their positions and yearn for the truth.
The mediator is a deal maker who concentrates on allowing the parties to accept a settlement that acknowledges both sides’ desire for truth, but recognizes that playing the right/wrong game will not necessarily achieve a deal. As a result, the mediator is in the awkward position of asking the parties to set aside their instinctive pull to prove the righteousness of their cases in favor of accepting a compromise that might be less than what they can achieve in court.
For a settlement to occur, the trial lawyer must begin the process of seeing himself or herself as a conflict resolver who happens to have a specialty in trial work. This process necessarily involves communicating in an environment where he or she must tolerate some amount of ambiguity, since settlement negotiations are rarely straightforward.