Mediator as Moral Witness

David A. Hoffman

A few months ago, I gave a talk on the subject of “Mediator as Moral Witness” to a group of mediators, and received a call the next day. One of the mediators who attended the talk had used the approach I recommended – basically, looking for and acknowledging the parties’ positive intentions – and it worked!! Here’s a description of the mediation (with identifying information disguised to protect the parties’ privacy and the confidentiality of the process).

In the Worcester District Court, the mediator met with Sheldon and Rick, two former friends, one now suing the other. They had been friends for at least thirty years – they played poker together each week, and lived in the same neighborhood until two years ago, when Rick moved to Los Angeles. “I was sick of the New England winters,” Rick explained to the mediator, but he kept coming back once a year to visit family. “I had no idea I was going to be served with papers!”

Sheldon told the mediator that he had sued Rick for the return of $4,200 that Rick had borrowed a few months after settling in California. “He said he was having trouble finding work and needed the money to go to a locksmith school, which had a good track record of placing graduates in jobs. I said ‘sure’ without really thinking about it.” For the past two years, Sheldon had been calling Rick and sending him emails – no response. Neither of them had written up the loan; it was just a long-distance ‘handshake’ deal.

But Rick had felt mortified by his inability to return the money. He had tried, unsuccessfully, to find a good job. He occasionally found some construction work, but nothing that paid well enough to get ahead of his debts. He was also deeply ashamed of lying to Sheldon about going to locksmith school. Yes, he had thought about it, he had checked out the web sites of several locksmith schools, but never took any concrete steps to do it, and meanwhile the $4,200 got spent on rent and day-to- day necessities. Rick wanted with all his heart to pull together the $4,200 – actually, he wanted to make it $4,500. But one setback after another – his car died, he had no medical insurance, and he needed various prescriptions – kept him from making any financial headway.

Meanwhile, Sheldon had run out of patience. He was enraged that Rick was stonewalling him. He heard in the neighborhood that Rick would be back for Thanksgiving, filed court papers, and arranged to have them served on Rick as soon as he returned to Worcester.

The mediator gave Rick plenty of time to tell his story, and to describe his desire to repay the loan. “I felt like my identity depended on repaying this money,” Rick said. “I felt like my identity as a good person was slipping away from me, with every passing day. I would have done anything to get my head above water and send Sheldon his money.”

The mediator paused. “It sounds like you were trying to do the right thing,” she said to Rick.

Rick looked up at the mediator with tears in his eyes. “Very much so,” Rick said. “I just wanted to . . .” and he just began to weep.

Sheldon was taking this all in, and waited a moment before saying, “Rick, I had no idea . . . you really want to pay me back, don’t you.” Then Sheldon, taken aback by Rick’s tears, started crying. “I need the money,” Sheldon said, “but we can definitely work this out. I am so sorry about what you’ve been through.”

Rick, pulling himself together, looked relieved. “I’m the one who should be apologizing here – not you,” Rick said.

The mediator asked a few questions about what sort of gradual repayment plan Sheldon had in mind, and asked Rick whether he could manage it. In a few minutes, they had written a short agreement with a payment schedule and signed it.

Rick and Sheldon waited in a long line with the mediator to file their agreement with the Court clerk, and while they waited, the mediator heard them sharing stories, laughing occasionally, and making plans for Sheldon to come to Los Angeles for a visit.

After they filed the agreement, the mediator congratulated them on what they had accomplished, and asked them for permission to tell about their success, but without their actual names. “Of course,” Rick said. And Sheldon added, “if telling about our case helps other friends bury their hatchets, we’re definitely OK with that.”

David A. Hoffman is a mediator, arbitrator and Collaborative Law attorney at Boston Law Collaborative, LLC. He also teaches three courses at Harvard Law School (Mediation; Legal Profession: Collaborative Law; and Diversity and Dispute Resolution), where he is the John H. Watson, Jr. Lecturer on Law.