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The IBA’s response to the war in Ukraine
JAMS, St Louis, Missouri
What is a bubbe-meise? It is a myth, a fairy tale, an urban legend. Literally translatedfrom the Yiddish, it is 'a grandmother’s fable'. Yes, I may have misappropriated this term by nuance: mediation evangelism surely exists. However, the use of the term is a reflection of a mentality that ignores the essential role of the law, lawyers, and dispute resolution constructs in furthering the best interests of the client.
A parallel consideration is other oft-heard statements, such as 'mediation is for divorces' and 'I do not need mediation: I am an excellent negotiator.' True, mediation is an unassailably effective mode of dispute resolution in family disputes. I contend that it is so effective because, in the classic case, a neutral mediator is injected into a bilateral contest between heavily entrenched combatants who have lost sight of common objectives in favour of investing in winning the biggest part of the spoils possible.
The mediator enters with an agenda to refocus from advantageous distribution of the spoils to the long game: a general detente to hone in on what likely is more important to the parties than extracting a pound of flesh from the other side: establishing a safe and healthy environment for children and creating the conditions by which separating spouses can both survive, both financially and emotionally.
So too in commercial mediation. We lawyers have a tendency to become over-invested in winning our vision of our clients’ battles: pursuing maximum defence of our clients’ rights, at the expense of the other party, rather than investigating what is the most commercially advantageous way for our client to resolve a difficult situation with a supplier, client, or business partner. We lawyers should be prepared to go to war for our clients, as a failure to recognise the contours and impact of the legal comparative rights and responsibilities involved in any conflict robs us of the vision of the elephant in the room: the alternative to a negotiated settlement. But chasing after the best such option (BATNA) or running from the worst such option (WATNA) is not the goal. The goal is to use these parameters as metrics to quantify the urgency of settlement and the limits of commercially acceptable resolutions.
Herein enters the mediator. He/she acts as a recalibrating agent, encouraging the parties to focus not on winning (in court, in arbitration) but on liberating themselves from the diversion of the economic resources required in battle (property, capital, and labour) to focus the same on profitability and strategic commercial interests.
At this point, the promulgator of the bubbe-meise will state that the foregoing may be applicable in some situations, yet, far from all. Here, the sceptic has inverted the equation: the cases are rare in which attempts at consensual conflict resolution under the guidance of an experienced mediator will FAIL to resolve the conflict, reduce the scope of issues that need to be resolved at trial or in arbitration, or otherwise create a more productive environment for the continuity of business interests.
We must remember, as lawyers, that we can never guarantee the outcome of an adjudicative process. But, we always have the opportunity to pursue consensual resolution to these costly, lengthy, resource-draining, and risky processes. When witnessing criticisms of mediation evangelism, the legal professional should consider whether the critic is not weaponising a nifty turn of phrase to obscure a universal truth: the costs of war are great and its outcome is uncertain. Mediation evangelism, as a concept, not a moniker, merely reflects this truism by reminding us that, in the hands of a skilled mediator, the high cost of war can be diminished, if not avoided, whilst the parties cooperate to create an acceptable, if not superior outcome, which is moulded by their own hands.