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by Andrew Flake

I was in Las Vegas last week, at Caesar’s Palace, for a meeting of the ABA’s Dispute Resolution section, an annual gathering of mediators, arbitrators, and other dispute-resolution professionals to compare notes on best practices and to take in presentations on what is current and trending. As we walked from our room to the conference itself, our route took us right through the bright lights, tumbling dice and spinning wheels of the casino floor. In the midst of all that frenetic energy and intensity, I had to smile: Here we were, at an ADR conference discussing the uncertainties of litigation and its risks, in the risk center of the world! Gambling and gaming are built entirely on risk. Let’s consider this a bit further.

In casino cards, or any game for that matter, there are elements of uncertainty — things that can’t be controlled, like which card comes out of six different shuffled decks — and a finite number of things we can control, like playing the cards we are dealt. In litigation, though we don’t have cards, we have a universe of facts, those events that have already transpired, money that has changed hands, documents the client has already written. Some things we know, the cards that have been dealt. Some we may discover, once the depositions and document requests are through, but not all: in no case is every card turned over — at least not until a trial, and even then, the undecided facts or unturned cards are what the factfinder, the jury or the judge or arbitrator, says they are.

The mediator-dealer: An interesting thought-experiment, but not a job opening we’re ever likely see…

Now imagine you are at the same blackjack table, but instead of your traditional dealer, you have a mediator-dealer. Suddenly, you have optionality. With your mediator’s help, you have a chance to learn what cards the other player holds, and where it is helpful, to share what you hold. You have someone who has played hundreds of these games to work with you, and the client, to better understand the risks. Most importantly, you have the chance, by agreement, to deal winning cards to both players. No one loses. No one goes bust. You have certainty, in the form of a settlement agreement that both clients have agreed upon.

In my mediations, I review this element of certainty with the parties and counsel, working to drive home the very special opportunity that any mediation affords the litigants. In a future post, we’ll discuss certainty, along with some of the other “Cs” of mediation (among them Confidentiality and Comprehensiveness) in more detail.

Now, as with any returning Las Vegas visitor, you’re likely wondering, “Were you up or down?” The answer is…I broke even — but that was not because of any admirable restraint, only because of a full schedule and some very early mornings. And to answer your other questions, yes, I did supply my resume to Caesar’s Palace management, but no, once again, they had no job openings for a volunteer mediator-dealer. That’s still an idea way ahead of its time…