Originally from:

AAA Handbook on Mediation - Third Edition

MEDIATION: A MAGNET FOR POSITIVE CHANGE

Steven L. Schwartz

I. Introduction

I can remember it so very well—my first really big important trial as a young lawyer. It all started with a personal summons from my firm’s senior litigation partner. The meeting with this courtroom gladiator was brief. I was to relocate from the document discovery room (my only assignment since joining the firm) to an office adjacent to his. A few days later I was called into his office where he informed me that I would be working on the trial of an antitrust case brought by our clients against an industry giant and a group of its customers. Making a long story short, after two-and-a-half years of pretrial maneuvering, the case was tried by a judge. Eighteen weeks later, we had a 50-plus page court decision to prove that our clients had won. Unhappily, two years later the 6th Circuit reversed the case and put everyone back to where they had started.

Did this case need to be tried? At the time, the answer was “yes.” Nothing short of complete capitulation by one side was within either side’s contemplation. The lawyers erected towering arguments that only further convinced them of the righteousness of their clients’ positions. Business needs and interests were obscured in the smoke of battle and when it cleared, both sides had won and lost the same case and neither could feel fully victorious.