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| Bradshaw & Bryant PLLC

I found it interesting when Governor Mark Dayton threw out the idea of mediation a couple of weeks back. The initial reaction was very negative. The majority response seemed to be: "They were elected to do the job, why would you bring in an outsider?" I’m not sure that response fully understands the mediation concept.

Mediation is a process where a independent lawyer/outside party is hired to try to work out a deal between the two sides. The Mediator has no power to make a decision and can not force a party to do anything. The parties are in separate rooms with the mediator using shuttle diplomacy to go back and forth and see what concepts the parties can agree on.

Council for the majority was quoted as saying:

a mediator would be "unprecedented, antithetical to the constitution and flat wrong."

Let’s look at this:

Unprecedented: sure.

Antithetical to the constitution : It’s a settlement tool, not a decision being made by an outside party. It seems better then dueling press conferences, the appointment of special masters, and more court hearings.

Flat wrong: For who? It seems to me they should just be saying " we don’t want to". Which is the same thing a lot of parities will do when all they want is a trial or an actual shutdown.

Our experience with the process suggests that this is an option that could work. We are involved in two to four mediations a month. The Alternative Resolution Process (ADR) is required by the Minnesota Courts in most cases. A perfect mediation has been defined as both sides being unhappy. The plaintiff takes less and the defendant pays more. For me, it’s trying to get the defendants to their top dollar, so my client can make a knowledgeable decision as to what the risk is to go to trial. A good mediation will make sure that each side has looked at their weaknesses.

The problem as I see it for the budget process is finding the right person or group to handle the mediation. It requires a person that each side will at least listen to. Does that person exist? It also requires a certain amount of trust in the mediator as you discuss your position. Again, I’m not sure that person exists.

But let’s assume that they did come up with someone. What would be the harm of getting everyone together in one place and having a real back and forth to hash through the details. The major benefit is to simply have everyone together focused on reaching a common agreement. Maybe, actually keep the State open for business.

Recent reports suggest that the parties can’t even agree on an agenda. I can guarantee you that a knowledgeable mediator could easily come up with a list of things to discuss. Even if all the mediator did was organize the day by the key pieces of legislation that make up a budget, there would be a chance something would get done.

I have in the past written about the article from the New York Times that supports the reasons why it makes sense to settle most cases. Looking at all of the issues involved in the budget, the stakes are even higher. No one will win with a state shut down or more court hearings. It’s time that the parties do what’s necessary to work out a deal. Being a leader requires that all of the parties look at what’s best for the state. Justice will be served by looking at every option.


  1. Gravatar for Pierce Egerton
    Pierce Egerton

    Makes great sense. And not just in Minnesota!

  2. Mike Bryant

    Thanks Pierce. It seems that they really need to get a kick in the butt and pushed to get something done. A good mediator might get that done.

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