The Accidental Mediation

Israela Brill-Cass

I was trained as a mediator in 1998. And I’ve been a lawyer since 1993. And I’ve been admitted in two states and the federal bar in Massachusetts. Now that I’ve shared my credentials and that you know that I’ve been a mediator for over a dozen years (lucky 13 actually), I feel o.k. letting you know that my first mediation happened by accident.

My first mediation wasn’t supposed to be a mediation at all. I was merely screening a case for the Land Court to see if it was appropriate for some form of Alternative Dispute Resolution (ADR) – mediation, arbitration, case evaluation or mini-trial. I was working with the state office of dispute resolution at the time and had been for a couple of years. This was the first Land Court screening we were asked to perform and, as instructed, I scheduled the parties to come to my office for no more than an hour to discuss the possibility of ADR in lieu of being assigned a trial date in the somewhat distant future.

The case involved a woman who owned a rather large and desirable parcel of property in a part of Massachusetts that is a well-revered vacation spot (we’ll call her “Landowner”) and the Town in which that property lay (“Town”). The Town wanted the parcel – or at least part of the parcel – and the Landowner did not intend to give it up willingly or quietly. The Landowner and her counsel showed up as did counsel for the Town. We sat in a room together with a colleague of mine who was observing the screening process so that he could learn it and do it for future cases (I had screened hundreds of cases in the Superior Courts but this was my first Land Court screening).

I asked questions…lots and lots of questions, because I knew nothing of the zoning requirements, land use or municipal laws that were involved in the matter. The last time I had heard the words “eminent domain” was in law school quite a few years prior. We talked for about 45 minutes. I apologized multiple times for asking what may have seemed like irrelevant questions, but, I explained, I didn’t really know the areas of law involved and I certainly didn’t know anything about the property in question.

As it turns out, despite numerous motions and a court date, this was the very first time two human beings involved in the case had ever been in a room together to actually talk about the case. The Landowner was understandably anxious and somewhat defensive. The attorney for the Town was charged with getting that property and presented herself kindly but forcefully.

Then at some point “the moment” happened. The moment when the Landowner lamented that the property she owned, that used to belong to her and her deceased husband, where they raised their children together, wouldn’t be there for her grandchildren to enjoy when she was gone. The Town’s attorney was visibly taken aback. She said to the Landowner “But you can still live there. And your grandchildren can play there all they want. All the Town wants is a small piece that leads to a public trail. It’s not even near your house.” Then the Landowner was visibly taken aback. Before she could speak, the Town’s attorney went further “And we’ll put up a sign that says that the land was generously donated by you and your husband….so your grandchildren can see the sign when they play there.” The Landowner smiled and tears filled her eyes. “Well then, I think that would be just lovely.”

They both smiled at each other and the Town’s attorney explained that she’d need to get the proposal by the Town’s council but that she thought it would go through without a problem. They shook hands with each other and then with me and they thanked me for all I had done. They left my office together discussing what paperwork would need to be filed and pledging to each do what they could to make sure everything got done before the next summer.

I sat in the room quietly. My colleague looked at me with a smile on his face and said “That was the most brilliant thing I’ve ever seen. You’re absolutely brilliant.” “Thanks,” I replied a little stunned, “but in all honesty I’m not sure how that just happened.” I went through in my head what had happened: I had given the parties notice that the Land Court required the case to be screened for the possibility of using ADR to resolve their case; at least one party was vocally reluctant to come at all; both were ready to argue their case to a judge; they hadn’t been in a room together and hadn’t communicated with each other but for a series of terse official-sounding letters and court filings; I screened the case – which for the purpose of this first Land Court case meant not understanding the law or the issues involved like I had with the hundreds of Superior Court cases I screened before it – so I asked more questions than I ever had before; I was honest with the parties that I didn’t know the law involved and I asked them to explain it and their concerns to me, sometimes repeatedly; and the more I did, the more they heard each other.

It took me a while to process that what had happened was mediation. It was mediation in its simplest and most basic form: a series of completely neutral questions (neutral not only in language but because I absolutely could not have communicated to the parties that I had an agenda in the matter when I was clearly communicating that I didn’t have a clue about some of what was being discussed) that opened a dialogue between the parties they hadn’t had before and that resulted in mutual understanding to the point of reaching a shared agreement about how to move forward.

It’s easy to see why people get hooked on this process. It’s not because it’s easy. Quite the contrary, depending upon the issues involved, the personalities of the parties and our own natural biases and challenges as mediators, sometimes it can be the most difficult thing you can imagine. But when it works, and I’d argue it works best when it’s as simple as that first “screening” it’s kind of an amazing thing to see.

In subsequent mediations, particularly when I’m feeling the overwhelming sense that the parties will never reach that “moment” I try to bring myself back to that first mediation. I try to remember that I need to pull myself back and simplify to the extent possible so that the parties can talk with each other and hopefully “get there.” And I remind myself that even when I’m convinced that I know the law and the issues as well as the parties, sometimes admitting that I don’t and proceeding accordingly, is the best thing to do.

[Israela Brill-Cass is Executive Director and ADR Program Manager at Boston Law Collaborative, LLC.]