This article examines how litigation and mediation have distinct narrative structures and what these narratives say about counseling clients about mediation. In the narrative of litigation, parties struggle against one another in order to convince a decision maker of the truth of "what happened." This struggle is about more than designating liability; it is about enabling the decision-maker to restore social order and vindicate morality. In contrast, the narrative of mediation does not call upon the mediator to designate "truth" or "right" and "wrong." Rather, the mediator acts to enable parties to overcome and transform conflict through collaboration. In the mediation narrative, parties do not struggle against one another, but all mediation participants - including the mediator herself - struggle collaboratively to overcome and transform conflict. A challenge for counseling clients about mediation is that the litigation narrative reflects deeply-held cultural norms about conflict resolution. This article argues that lawyers must confront and dislodge this underlying narrative of litigation in order to engage clients in a meaningful inquiry about mediation. The article concludes with concrete suggestions - a "toolkit" - for engaging clients in this kind of narrative reframing of their disputes.
Client Counseling, Mediation, and Alternative Narratives of Dispute Resolution, 10 Clinical L. Rev. 833 (2004)