For a great example of judicial problem solving, check out this video of Justice Sotomayor resolving a dispute between Goldilocks and Little Bear.
This meeting has a nice casual, win-win feel to it. The parties can even have a little snack while they talk, so it's a lot like mediation. But there are a few key differences.
For one thing, neither side has a lawyer running the show, getting in the middle and telling them what to do. Both are feeling like they get a chance to tell their story, without the lawyers interrupting and telling them to stop. In a real, live courtroom situation, things are not run this way. Evidence is tightly controlled. While “your” side is intent on telling your side of the case, the “other” side is intent on keeping out any evidence that doesn’t meet strict standards for admissibility. In some cases, this can make parties feel as if their entire story has not been heard, even after they have their full day in court.
If a party really wants the other side to hear what they have to say, mediation is more likely to be the forum in which the issues can be fully aired without being limited by what the lawyers view as being “relevant” and “admissible”.
Next, Justice Sotomayor demonstrates a key difference between a judicial decision and mediation. Namely, she makes a decision (in law, called a “ruling”), imposing a “judgment” in the case, in which she tells the parties what to do. This is very unlike mediation, because a mediator doesn’t impose a solution from the outside in. In sharp contrast to a judicial “ruling,” a mediator would have kept asking questions and facilitating discussion until the parties came up with their own, voluntary solution.
It’s possible that a solution agreed upon by the parties would have involved fixing or replacing the chair, but there is a broader range of possibilities that they could have considered and agreed upon. Perhaps little bear had outgrown his chair, or would have preferred a hammock? The parties could have discussed that. Remedies in mediation are not limited to what a court could order. The parties are free to agree on anything they both feel is fair.
I note also that the solution imposed by Justice Sotomayor, to fix the chair, was one that is unlikely to be ordered by a U.S. Court. To order a party to do something in particular, such as to fix an object, is called “specific performance.” While specific performance is in the range of possible options, there are challenges with imposing this as a matter of law. Who decides if the chair is fixed well enough? What if it costs more to fix the chair than the chair is worth? Because of these and other issues, as a practical matter a court of law is more likely to award money damages: A court is more likely to order Goldilocks to pay Bear a set amount of money, perhaps the amount of money it would cost to replace the chair, or the amount of money Bear could have sold it for as used furniture. To allow Goldilocks to repair the chair is a “restorative justice” approach less likely to be ordered by an American court than monetary damages.
When the parties come up with their own ideas and own solutions, there is also more “buy in” and therefore more likelihood for two things: (1) that both parties will be happy in the end, and (2) that both parties will follow through with what they agreed to do. It is faster for a judge to jump to a conclusion and order the parties to do something. But it’s possible that what is so obvious to everyone else may not be obvious to one of the parties. Perhaps they need time and space to mull things over, to think through the possibilities, and to consider all options before they would arrive at exactly the same conclusion. Having the parties think through and take responsibility for their own decisions results in problem solving that is deeper and more authentic, and thus more likely to be accepted by all involved on a deeper, emotional level.
Perhaps Sesame Street would like to invite a mediator to demonstrate in a similar case? How about “The Three Little Pigs?” Goldilocks is an EASY case! Three Little Pigs is a bit more challenging, but it can be done! (Every case, no matter how intractable it may seem at the outset, has potential to benefit from conflict transformation if only the parties will listen and try to find ways to work things out. )
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