In today’s litigious society, public entities have increasingly turned to mediation as a means of alternative dispute resolution. Unlike for-profit entities, public entities are unique, due to their relationship to the citizens who come before them seeking redress for personal injuries and other perceived wrongs committed against them. It is imperative that today’s mediator appreciate the subtleties, nuances, structure, and function of those public entities that become involved in the mediation process, lest her or his efforts come to naught.
As citizens become increasingly aware of their rights, it is important to appreciate the reasons some citizens are willing to mediate their disputes with government. Not all of them are monetary. For instance, many citizens possess:
- A desire to increase government responsiveness,
- A desire to increase government accountability,
- A desire to increase government legitimacy,
- A desire to reduce corruption,
- A desire to reduce waste.
Based upon the above, a lack of knowledge as to the structure and function of the particular public entity involved in the mediation process can serve to:
- Greatly hinder the credibility of the mediator,
- Greatly hinder the credibility of the mediation process,
- Diminish the chance for case resolution, and
- Limit the mediator’s ability to fully appreciate the nature of the claim as well as the settlement authority of the government’s representative.
Mediators tasked with mediating citizen-government disputes should consider whether there exist less subtle factors that could derail the process, such as:
- Are there political considerations?
- Is there community interest in the outcome of the litigation?
- Are there media considerations?
- Are their fiscal restraints or considerations?
It is imperative that the mediator determine, prior to mediation, the identity, mediation experience, and, most importantly, the settlement authority of the government representative accompanying the government’s attorney. Further, the mediator should inquire when the representative anticipates making a recommendation to the elected politic once an agreement is reached at the negotiation table. It also is wise to identify any hidden players who may possess the ability, directly or indirectly, to influence negotiations and settlement. Individuals such as fiscal/budget officers, risk/claims managers, and clerks of court are usually the most vocal and influential interested parties. Finally, timing is crucial, especially during an election year when many elected officials become paragons of fiscal conservatism, and as such, unwilling to settle even the most legitimate of claims.
In summary, mediating with public entities is a unique experience, albeit one that needn’t be daunting provided the mediator takes the time to research the public entity poised to sit at the bargaining table.
* Joseph G. Jarret is the County Attorney for Polk County, Florida, and a Florida Certified Circuit Civil and County Court Mediator.