The Closer

A Mediation Newsletter January 2013

Adapt, Improvise, Overcome
by James Rainwater

One of my favorite Clint Eastwood movies is "Heartbreak Ridge." As a Marine Gunnery Sergeant, Eastwood tells his men how to confront adversity: "You adapt. You improvise. You overcome." It is a line he echoes throughout the movie and one that resonates with me. And its application to mediation is tangible.

The nature of the legal system is founded on rigidity, and at times, it is difficult for attorneys, and clients as well, to break from that mold. Yet, mediation presents the opportunity to be expansive and out-of-the-box. The walls of the courtroom do not exist here - literally or figuratively.

The mediation conference is the time and place to solve the problem. If the participants are not being cooperative, it is incumbent upon the mediator to facilitate more aggressively, using all means available. The focus must be on resolution: What will it take to get the deal done?

Certainly, I am not suggesting the mediator should become a drill instructor and begin shouting commands. However, the mediator should proffer the concept of open-minded thinking. Nothing is carved in stone or made irreversible until all parties have agreed and signed the settlement agreement. And to get to that point, everyone needs to view this end product and to keep it constantly in mind. Because the mediation conference is time-limited, there is a sense of urgency.

Like Clint Eastwood's Marines taking a hill during combat, as attorneys and mediator, we must give thought to options and offers presented and convey that receptiveness to the parties themselves. Are there parts that can be adapted? Are there novel approaches that can be improvised? Are there individual obstacles that can be overcome? Sometimes, we can be quick to dismiss those ideas contrary to our own. Mediation should be the endeavor of molding something until it most closely fits the wishes of each party. It is not always the most pleasant experience, but the end product makes it worthwhile.

Rainwater Law