is the most exciting thing you can do.” Still, early on, though he may not have recognized it then, he was learning the value of working things out without being adversarial. Born in East St. Paul, the now-64-year-old Bluth ended up serving one-and-a-half tours in Vietnam. As a paratrooper, he became embedded with a small group working with Vietnamese civilians with whom he had to negotiate. And then there was the time early in his law career, after he graduated from Hamline, when he found himself dealing with two Amish farmers in Long Prairie. One wanted to sue the other because he had let his mare, who was in heat, wander, tempting the other’s stallion to jump a fence. In the heat of equine passion on a county road, the two horses were hit by a car – injured, but not killed. Bluth told the farmer, it wasn’t a case fit for court, and a trial would cost more than he could ever get out of it. So they settled. That might have been his first actual mediation, although he didn’t necessarily call it that. “When I was in law school [in the’70’s] it wasn’t really part of the discussion. Now most law schools offer mediation as a core concentration. For family law, I think it works.”
Mediation increasingly popular
In fact, mediation as a form of alternative dispute resolution has grown tremendously over the last two decades. It is practiced by a number of local attorneys, including Bluth, as a recognized specialty. It’s used most often in cases pertaining to family law, and also, increasingly, to resolve medical malpractice cases. Bluth’s transition to full-time mediation was hastened by some serious medical issues six or seven years ago that forced him to rethink the high stress and obvious physical demands of courtroom trials. He plunged into training for his new specialty, learning in the process that there are several styles of mediation. “Facilitative” is the most established style, in which the mediator sets up a process to help the adversaries find, as Zena Zumeta puts it at Mediate-dot-com, “a mutually agreeable resolution. The mediator…assists the parties in … analyzing options for resolution [but] does not make recommendations.” Bluth describes a typical facilitative exchange as, “I hear what you’re saying, but should you also consider…? You try,” he continues, “to get the separate parties to come up with THEIR OWN solution.” In a custody case, he’ll sometimes ask the warring parents to put a picture of their child on the table in the middle of the room, and ask them to look through the child’s eyes, as a judge often does. “Evaluative mediation” allows the mediator to make recommendations. In that case, the parties may be sequestered in separate rooms, with Bluth shuttling back and forth. He may actually say, “I think this is what’s best…,” taking into account what a judge might conclude on the facts. He could even go so far as specific suggestions for a settlement document. If the process seems tedious, Bluth points out, it’s much faster than going to trial, which can drag on for up to six months – even years, if there’s a
simultaneous criminal issue like sexual abuse. And then there’s cost. Even in the Mankato area, a bitterly contested divorce that goes to trial can conceivably run to $50,000 or even $100,000. Says Bluth, “the alternative to settlement is so much more costly and often devastating.” Plus, he says, at trial, there’s always the chance you will LOSE. There’s a third approach to mediation, newer, not used as often, but one Bluth finds intriguing, called “Transformative.” He describes it as an “almost Buddhistlike” process of seeking awareness. He says he is comfortable with this style, in which the mediator is almost “like a psychologist,” frequently probing with questions like, “What do you mean when you say…? We try to guide them into hearing each other.”
Getting it just right
Recalling his courtroom days, Bluth allows a slight smile describing his style: “I could be tenacious.” He says he had to convince some of his legal colleagues that his approach had changed as a mediator, but “the civility factor here [among attorneys] is high.” In the end, he says, “everybody wants to move away from pain and toward pleasure.” As a trial lawyer, success was winning the case. Now, “either getting the parties to a solution they can actually live with, or at least getting them to seek resources…” – that’s a win in this complicated game of being human. “It’s like Goldilocks,” he grins, you want what is just right.
A virtual office
For Bluth, the familiar “I’ll see you in court!” has been replaced by, “Let’s see if we can avoid that.” Gone is the comfortable, well-appointed office in the brick building on Broad Street, replaced by a virtual office that can be set up almost anywhere. He does four to six mediations a month, and two to four E-N-E’s. Mediation can run up to $200 an hour, still well short of what he made as a trial lawyer. But from the perspective of the parties involved, one or two or even three days at that rate is far less punishing financially and emotionally than a six-month trial court proceeding. Bluth insists, “This keeps me happy.” MV
MN Valley Business • April 2014 • 23