Mock mediation team wins third straight national title
By Brian Fitzgerald
Last January, Martin Dutcher — a week after being released from a psychiatric facility — was changing a tire on a highway when his car was nearly sideswiped. The driver, a golfer named Tony Kissner, stopped and tried to apologize, but Dutcher flew into a rage, hitting Kissner and a friend with a tire iron.
A state trooper intervened, shooting Dutcher in the collarbone. But Kissner’s golf career was destroyed, so he filed suit against the hospital, alleging that the facility was negligent in releasing Dutcher, who suffered from “intermittent explosive disorder,” a psychological affliction characterized by periodic episodes of severe, uncontrollable fury.
It’s hard to believe that there is any winner in this tragic story, except for the fact that the Boston University Mock Mediation Team, by helping resolve Kissner v. Polk Hospital out of court, captured its third straight title at the annual National Mock Mediation Tournament at Chicago’s John Marshall Law School last month.
The tale was fictional, but BU’s dominance in the 17-team competition is very real. “It was extremely gratifying to see them win again,” says team coach Susan Sloane, a LAW lecturer. “Because they won the last two tournaments, everyone was gunning for them, so I was excited when they won the final round.”
Named All-American mediators in the tournament were team members Victoria Poulton (CAS’05), Kimberly Cuff (CAS’06), and Stephanie Ehresman (CAS’07).
“It was a great experience,” says Ehresman, who plans on going to law school after she graduates. “The main difference between a mediator and trial lawyer is that trial lawyers are opponents, and they are both trying to win. But in mediation the goal is to work out a solution that everyone agrees with.”
Organized and sponsored by the American Mock Trial Association, the tournament is designed to show future lawyers the benefits of mediation as a way to resolve a dispute before it goes to trial. “In fact, very few cases actually proceed all the way to trial,” says the team’s other coach, Edward Stern (LAW’72), CAS assistant dean for the pre-law program. “About 90 percent of all cases are settled.”
Sloane and Stern, both attorneys who have worked as mediators, point out that mediation provides people with disagreements a chance to come to a resolution on their own terms with limited expenditure of time and money. “In mediation, the parties remain in complete control of the process and the outcome,” says Stern. “After a trial, one party is usually happy and the other furious. But in mediation, neither side can force a resolution on the other.”
Sloane says that she and Stern, who also coach BU’s Mock Trial Team, formed the mediation team in 2002 because more and more frequently disputants and their lawyers are exploring solutions outside the litigation process. Lawyers use skills in mediating a dispute that are different from those employed in a trial, which polarizes the parties because it is adversarial in nature, and these skills are valuable to prospective lawyers.
“If you want to be a mediator, you have to be empathetic, and develop your listening skills,” says Sloane. “You have to listen for emotional undertones — what’s not being said. Part of what they have to do is find out what will appease each party. Is money the issue, or does the party really want an apology? The mediator’s job is to bring parties together to come to their own agreement.”
In the case of Kissner v. Polk Hospital, an apology would hardly suffice for the lost earning potential of a professional golf career. “And the psychiatric facility wanted to avoid bad publicity,” says Cuff, who was the attorney for Polk Hospital. This fact gave Kissner an advantage in seeking to collect damages. However, in this case, the participants in the mediation sessions ran out of time before a dollar amount could be determined.
“Still, it’s not important what the settlement is,” says Sloane. “It’s how they reach the settlement — how well they represented their clients in the settlement negotiations. And BU’s mediators, once again, did extremely well.”