A Mediation Story: What we can learn from a few cows, a duck, and a farmer
The cows are on strike. It’s cold in the barn, and they want electric blankets. But Farmer Brown needs milk. Why would cows be entitled to blankets? They’re his cows, and he demands milk. How on earth are these two parties, seemingly worlds apart in their expectations of each other, going to reach a compromise?
If you haven’t read the Caldecott Honor book, Click, Clack, Moo: Cows That Type by Doreen Cronin, it’s worth a visit to the local library. Yes, Click, Clack, Moo is a children’s book, but the story just might resonate if you are dealing with a legal case in stalemate.
Whitehurst, Blackburn, & Warren attorney Joe Cargile noticed the parallels between the book and the mediation process during story time with his kids.
“One party wants one thing; the other party wants another thing. In many ways, the story mirrors the legal process,” explains Cargile.
In the story, the cows represent Party A, requesting electric blankets to keep warm in the barn, and the farmer represents Party B, requesting milk from the cows. A helpful duck acts as a neutral third party, delivering the messages of the cows and the farmer in an unbiased way. It’s a story of basic mediation.
Mediation is a very common step in the legal process. A neutral party, typically a lawyer, acts as the intermediary between two parties – just like the duck in Cronin’s story. In the mediation process, the mediator is chosen and agreed upon by both parties. He or she presents the details of the case and settlement proposals to both sides, then facilitates conversations back and forth until, ideally, a consensus is reached.
“A good mediator not only on that relays the parties’ offers, but also has the ability to give constructive advice to both sides,” explains Cargile. “An experienced mediator, especially one who has been a practicing lawyer, often has the benefit of seeing where the middle ground really should be, and knows how to get the parties there.”
The mediator can rely on experience to help guide the parties on the strength and weaknesses of their cases. In some cases, a mediator will encourage one party to concede, as their chances of winning in a courtroom are slim.
Mediation often happens in a day: “In most cases, the parties agree to sit down in the morning and try to get it done that day,” says Cargile.
But there are times when multiple sessions are needed. Or after a day, it may be obvious that everyone’s just too far apart.
“If one party proposed a ‘middle ground’ and that middle ground still sounds way off to the other party, it’s likely that the case will have to go to trial,” says Cargile.
Even when mediation doesn’t resolve the issue, it at least demonstrates to the court that the parties tried to find a solution and tried to save the time and expense of going to trial.
In addition to mediation, you may have also heard the term “arbitration.” Arbitration, while it differs from mediation, is not nearly as common. In arbitration, both parties agree to submit to a process very similar to a trial with a neutral judge. Arbitration is often used in cases where a binding contract requires it beforehand, or instead of, a trail.
Just like almost everything else in our lives over the past year, the judicial system has also been forced to pivot in the pandemic. Luckily, mediation can be accomplished very well via video conference with the mediator switching between clients in breakout rooms (should both parties agree to this virtual format).
“There seems to have been an uptick in mediation over the last year since courtroom trials are on hold and the system is back-logged,” says Cargile. “Mediation via Zoom has been a good alternative.”
Of course, in some situations, a formal trial may be the only viable solution. However, let’s not forget the value of an unbiased duck.