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Neutral Corner: lessons from golf for mediation

December 14, 2016

NeutralCornerBW.jpgThe rules of golf are promulgated and published every four years jointly by the Royal and Ancient Golf Club of St. Andrews and the United States Golf Association. The forward to the 2016 edition of the rules provides:

“The rules are guided by the historical principles and ethos of the game and … the importance of ensuring that golf is played with integrity and in accordance with etiquette.”

The Indiana Rules of Alternative Dispute Resolution are introduced with the preamble statement that the mediation rules were adopted to “bring some uniformity into ADR with the view that the interests of the parties can be preserved in settings other than the traditional judicial dispute resolution method.” The preamble to the mediation rule could have easily provided, as do the rules of golf, that the mediation rules are guided by the historical principles of the legal profession and the importance that mediation be conducted with integrity and in accordance with these principles.

No referee

The rules of golf begin with a statement of “The Spirit of the Game”:

“Golf is played, for the most part, without the supervision of a referee or umpire. The game relies on the integrity of the individual … . All players should conduct themselves in a disciplined manner, demonstrating courtesy and sportsmanship at all times, irrespective of how competitive they may be.” (Section 1, ROG)

Although mediation is considered by the Indiana Supreme Court to be a “court proceeding,” it is conducted in private, with no judge present. This private nature of mediation and its cloak of confidentiality serve to insulate and isolate the participants from outside scrutiny and, as in golf, with no referee present, the integrity of the process depends on the professionalism of the participants — the mediator and lawyers. Although the ADR rules describe mediation as a “non-adversarial” process, the reality of mediation of litigated cases is that the lawyers are expected, both by the parties and the process generally, to advocate for their client and to attempt to guide the mediation process to meet their client’s ends or interests.

However, just as golfers are admonished to conduct themselves in a manner consistent with the spirit of the game, “irrespective of how competitive they may be,” so too are lawyers bound by the Rules of Professional Conduct to balance their duty of advocacy with a foundational duty to the profession and public generally. Lawyers are not bound to “press for every advantage that might be realized for a client.” (Rule 1.3 RPC). Lawyers participating in mediation sometimes feel compelled, by what they perceive as a duty to advocate, to gain every concession, win every point, maximize any monetary settlement to the absolute limit. While perhaps resulting in relatively small or marginal benefit for the individual client in that mediation, overly zealous advocacy, especially when coming from a position of strength or extreme leverage, could result in a longer-term diminution of that lawyer’s ability to get satisfactory results for future clients.

All advocates are the sum total of his or her professional experience, skill, knowledge, temperament and real or perceived sense of fair play, and it is this sum total of attributes and reputation that lawyers offer to the next client. In litigation, it is indeed a round world and the next client might be in a position of lesser strength or lesser leverage, and the ability of the lawyer to obtain a settlement that best meets his or her client’s interests might be impaired if there is no reservoir of good will and reciprocity.

Play it as it lies

Perhaps no rule or aspect of the game of golf has more application to mediation than Rule 13.1 This core standard states: “The ball must be played as it lies, except as otherwise provided in the Rules.”

There are two important parallels of this rule to mediation. The first is fundamental: just as golfers must not improperly “improve” the lie of the ball, lawyers must not seek or gain an unfair advantage by misrepresenting any fundamental aspect of the case or by manipulating the process. Examples are legion but would include reporting to the mediator or opposing party incorrectly that a certain expert has been retained, that certain evidence exists or that financial realities preclude certain results.

The second parallel of Rule 13 is just as important — just as golfers must play the ball as it lies, whether squarely in the middle of the fairway or buried deep in the rough, lawyers in mediation will often have to settle the case in its current factual and procedural posture. Mediations occur at all stages of litigation and adversaries in pre-suit or early mediation often have the luxury of arguing from all the possible positive ultimate future outcomes or potential rulings.

However, when the mediation occurs after the trial court has issued multi-paged, detailed findings of fact or conclusions of law in connection with a dispositive motion or preliminary hearing, it is submitted that lawyers may be required to “play the ball as it lies” — that is, mediate and advocate the case in its current posture. Litigants who are inclined to put significant stock in the results of focus groups or mock juries and who urge the mediator or parties to consider same will often discount or effectively ignore the current status of the litigation. Mediation advocacy is fundamentally a risk-analysis process and it is submitted that rulings and findings, even when preliminary, have negotiation consequences. Advocates seeking to obtain a settlement result inconsistent with the current case reality may need to consider deferring mediating until after an appeal or ruling on a motion to reconsider.

Finally, English golfer Percy Boomer is quoted as saying: “If you wish to hide your character, do not play golf.”

Perhaps the same admonition could apply to a serious mediation session. The crucible of the mediation process not only reveals the settlement options available to each party, it often reveals much about the participants.•

John R. Van Winkle, of Van Winkle Baten Dispute Resolution, is a former chair of the American Bar Association’s Section of Dispute Resolution and author of West’s Indiana Rules of Dispute Resolution Annotated. The opinions expressed are those of the author.

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