Mediation Goes to the Movies
One of my boys recently observed that there are plenty of lawyer movies. He questioned why there are no mediator movies. As explained below, the answer to that question is simple. Nonetheless, with too much time on the beach during vacation, I pondered the “what ifs” of mediating some iconic movies. Can this hypothetical cinematic exercise teach us anything? Or, does it merely prove that I need more to do while on vacation? I recognize that those conclusions may not be mutually exclusive.
First, the answer. Lawyer and legal movies incorporate built in conflict. Whether against each other in court or within the confines of a law firm, lawyers clash. They argue. They stake out positions and defend them. Litigation compels parties to fight. The litigation process, by definition, remains adversarial.
This “conflict” serves as a ready-made plot device. The underlying movie plot could be the legal battle itself (e.g., To Kill A Mockingbird, A Civil Action) or the vehicle to move the story along (e.g., 12 Angry Men, My Cousin Vinny). It is easy to create heroes and villains where there exists conflict. In sum, the conflict represents tension from which the story evolves.
Compare lawyer and litigation conflict to mediation. Mediation remains a voluntary process where all agree to attempt to seek resolution of conflict. Mediation participants want peace and finality to claims. They want to terminate battles. One need only look to two fundamental mediation training books to sum up mediation: “Getting to Yes” and “Getting Past No”. A movie about people cooperating and inching toward handshake and a settlement agreement, quite simply, is not an action thriller which will fill up the seats of a movie theater. For cinematic purposes, mediation is boring.
Nonetheless, my son’s observation got me thinking about what might happen if mediation were introduced into movies. For these purposes, I eliminated from consideration all lawyer and legal movies as such films already begged for some alternative dispute resolution. I sought to focus on the classics and well-known movies. I selected an unlikely trio of movies as mediation candidates: The Wizard of Oz, Casablanca, and Animal House.
The Case of The Wizard of Oz or Who Owns the Shoes
The essence of the dispute in The Wizard of Oz boils down to who has a legitimate or better claim to the ruby slippers. Dorothy Gale was thrust into the fray after her well-crafted Kansas house left the Wicked Witch of the East “not merely dead, . . . really most sincerely dead”. Without consultation or consent, the good witch transferred the ruby slippers to Dorothy. Dorothy remained in possession of the fancy shoes as, at best, the recipient of a gift. Pretty slim legal entitlement claim to the shoes for Dorothy.
However, the claim of the Wicked Witch of the West does not appear much more sound upon examination. We know of no will which bequeathed the ruby slippers to the Wicked Witch of the West. The Wicked Witch of the East clearly did not give the slippers to her sister as evidenced by the fact that the Wicked Witch of the East had been using them upon her demise. The simple fact that the Wicked Witch of the West claimed to be aware of the powers granted by the ruby slippers and that she knew how to use such powers fails to constitute a valid legal claim of ownership.
With each party presenting tenuous legal claims for the ruby slippers, the dispute cries out for compromise and mediation. But wait. Can this dispute truly be resolved with only Dorothy and the Wicked Witch of the West? As we learned, the Wizard of Oz himself may be required for transportation back to Kansas as well as the Good Witch of the North. Sounds as if they should be included in the mediation. Perhaps the Good Witch of the North herself possesses a claim for the shoes. If the Wicked Witch of the West ultimately retains powers from the ruby slippers, would not the Munchkins be entitled to a seat at the mediation table to ensure the peace they gained when the Wicked Witch of the East got squished? This mediation covering footwear suddenly became quite complex and crowded.
A critical point for mediators and participants is to identify necessary stakeholders in order to completely resolve a dispute. The stakeholders may be parties to the litigation or even third parties with some interest. Seek to identify any such stakeholder prior to mediation and resolution efforts. Otherwise, your mediation could be derailed by a pack of Munchkins at your door.
The Case of Casablanca or Rick vs The World
It is no wonder that Rick often acts as if the weight of the world rests on his shoulders in so many scenes of Casablanca. He feels directly responsible for the well-being of Sam and all employees at Rick’s Cafe. He believes he must protect them from all external influences. He loved and lost only to confront this love again in his own gin joint. He constantly battles the only other, well-connected bar owner for supplies, customers and control over corrupt local officials. He secretly anguishes over perceived injustices in local and world conflicts while stating that he will “stick his neck out for no one”. He then must overcome possible jealousy of a true freedom fighter who happens to be married to the love of his life. Rick is fairly miserable for the one who possesses German letters of transit which ensure freedom to the bearer. At least Rick need not worry about Ugarte.
How can mediation help in Casablanca? Initially, we might need a family law mediator to assist with the Rick vs Ilsa and Victor Laszlo scenario. Rick needs help with all his feelings of revenge while Victor desperately needs the letters of transit to continue the resistance fight.
Just who deserves the letters of transit would be a fascinating mediation. Rick possesses them. The German officers assert some level of ownership as the letters were stolen from a German courier. Ilsa and Victor seek them citing the moral high ground of the need to continue resistance efforts. We should not forget Captain Renault who ordered the search of Rick’s Cafe looking for the letters of transit due to their monetary value in Renault’s corrupt enterprise.
While Rick is on the way out of town, he sells Rick’s Cafe to his business opponent, Ferrari. One cannot help but think that Rick and Ferrari, both practical business owners, would have benefitted from a pre-arranged, mediated business solution in the very likely event one of them had to expeditiously get out of town.
Perhaps mediators might not have been able to assist in resolving Rick’s internal moral struggles or the spread of Nazi control in the region. However, given the number of distinct conflicts presented by Rick, mediation could have been used to bring Rick and all these other parties closer on a host of disputes. But, one mediation could not address the family law, business divestiture, and letters of transit disputes, among others. The parties and mediator would need to define the issue(s) being addressed. Only then could the necessary parties focus on the core disagreements and work toward solutions.
The Case of Animal House or The Merits of Double Secret Probation
At first glance, Animal House may be a questionable mediation candidate. Yet, the plot provides various disputes which could benefit from mediation efforts, both within and involving the Delta Tau Chi fraternity and Faber College. The long-standing and numerous disputes between the Deltas and the Greek Council are primed for resolution discussions rather than formal hearings. Instead of penalties, solutions could be crafted to better encourage rule-abiding conduct by the Deltas. Dean Wormer placing the Deltas on “Double Secret Probation” without notice or advice of consequences may be an area where emotions are ratcheted down and common ground reached. Finally, the Deltas insisting on a Roman Toga Party in response to disciplinary steps could possibly be avoided with a better understanding of the positions of all involved.
The challenge with each dispute from Animal House remains the unreasonable expectations of each party. For the Greek Council, the only acceptable solution is taking away the Delta’s Charter. For Dean Wormer, anything short of expulsion of the Deltas from Faber is a failure. For the Deltas, any response not including an over-the-top beerfest and revenge-filled parade is a non-starter.
A perceptive mediator as well as lawyer-participants representing clients will appreciate, and act on, unreasonable expectations of a client before the mediation. Demanding that students, however questionable their academic profiles and misdemeanors, leave college gives the Deltas a “nothing to lose” mentality. The extreme positions ensure an extreme response and fight instead of negotiations. Mediation requires compromise and the compromise will lead to an agreed upon settlement somewhere between the extremes. The unreasonable expectations and demands of some parties need to be addressed head on in order to direct these parties toward a realistic settlement range.
I am confident that there exist other and better mediation-movie candidates. For each example, mediation can alter the dynamics of conflict, turning them into opportunities to difuse a situation or possibly resolve the dispute. Of course, movies then would be far from exciting, regardless of the excitement for ADR processes each mediator would most definitely bring to the table!