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Courting compromise
Mock mediation team wins second straight national title
By David J. Craig
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Cheryl Clayton (CAS'05), Mysti Kofford (COM'04, CAS'04), and Jonathan DeFaver (UNI'06) (front row, from left) placed first in last month's National Mock Mediation Tournament in Chicago. Also pictured is BU team member Victoria Poulton (CAS'05) (back row, from left), Edward Stern, CAS assistant dean for the pre-law program and team coach, Susan Sloane, a LAW lecturer and team coach, and team member Dan Neumann (CAS'05). Photo by Vernon Doucette |
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After listening for nearly two hours in a stuffy conference room to opposing arguments in a wrongful death lawsuit, mediator Mysti Kofford struggled to keep her patience. The parents of an NHL hockey player who died of an aneurysm after falling to the ice during a game insisted that their son's team owed them millions of dollars because it had allowed him to play despite his dangerous brain condition. Their case was weak, Kofford knew, because the player was aware of his condition.
But Kofford's job was not to judge the case's validity, but to help craft a settlement. She eventually succeeded: the team agreed to buy a $2.5 million annuity for the parents, which would pay out $11 million over their lifetimes. It also would erect a memorial for the player, with the parents choosing the design.
That creative settlement — hashed out not between real lawyers and disputants, but between students in a competition — helped Kofford (CAS'04, COM'04), Cheryl Clayton (CAS'05), and Jonathan DeFaver (UNI'06) earn first place at the National Mock Mediation Tournament, held at Chicago's John Marshall Law School last month. Another BU trio, consisting of Dan Neumann (CAS'05), Tiffany Olfield (CAS'04), and Victoria Poulton (CAS'05), finished third of six teams in the tournament's first round, but officially placed fifth overall because only one team per school is allowed to advance to a final round. All six students took home All-American awards from the competition, which BU won last year, as well.
“One of the most difficult things about being a mediator is that you have to stay perky for hours,” says Kofford, a political science and journalism major who will attend law school next year. “You can't show frustration, which is tough when you're dealing with stubborn clients and attorneys who have hidden agendas and sometimes threaten to bring the whole process to a standstill. You've got to be upbeat and keep asking lots of questions and let them talk, until you get the case settled.”
Organized and sponsored by the American Mock Trial Association, the National Mock Mediation Tournament is designed to promote to future lawyers the idea that legal work can involve peacemaking as well as litigating. Although the legal profession has been slow to accept mediation as a legitimate method for resolving serious disputes, in recent years increasing numbers of lawyers and would-be litigants are embracing it as a relatively peaceful, quick, and cheap alternative to trial, says Susan Sloane (LAW'72). A lecturer at LAW and an attorney who has worked as a mediator, she coaches the undergraduate mock mediation team with attorney Edward Stern (LAW'72), a CAS assistant dean for the pre-law program. Sloane and Stern launched the team in spring 2002. They also coach BU's mock trial team, which last month won an invitational mock trial tournament at Yale. Most members of the mock mediation team also compete on the mock trial team.
The appeal of mediation, says Sloane, is that unlike arbitration, where a judge decides a case's outcome, the opposing parties in a mediated case create their own settlement. A key to being a successful mediator, she says, is to coax each party into revealing his or her underlying motivations in a case. The work is usually done by attorneys, psychologists, or social workers. “It's not uncommon for the plaintiff in a lawsuit to want something as simple as for the defendant to admit that he or she was wrong and to make a public apology,” she says. “If the plaintiff gets that, he or she might settle for much less money than otherwise. . . . So it's the mediator's job to find out what's going on in each party's head.”
To that end, Kofford asked lots of open-ended questions during the national tournament. A turning point in her case was when she picked up on an interesting comment made by the hockey team's representatives: that the team manager felt deep guilt about his former player's death. “I ended up discovering that, just as the player's parents wanted the lawsuit over because it was keeping them from grieving,” she says, “the team was determined to settle it as soon as possible, as well. When that was on the table, things moved forward.”
Olfield, an international relations and history major who plans to attend law school, says that competing on the mock mediation team has broadened the professional possibilities she envisions for herself as an attorney, as well as developed her public speaking skills. “I like the idea of doing litigation law because I enjoy being forced to think on my feet and speaking in front of groups, but I get the sense that mediation is the direction law is moving,” she says. “Lawyers who are familiar with the mediation process and who can work as mediators could have a unique opportunity to help people resolve issues, and to reduce court costs.”
Adds Kofford, “The skills you use as a lawyer in a trial situation and as a mediator are very different. In a trial you're being adversarial, which is something that a lot of people don't like, but as a mediator you're in a more relaxed environment, sitting around a table, listening, being supportive, and showing empathy for people. That's something that a lot of people can do without feeling too out of their element.”
12
December 2003
Boston University
Office of University Relations