Philosophy of Mediation
What is the best way to resolve a dispute?
There are generally three dispute resolution alternatives where litigation is pending: first, try the case; second, go before a settlement judge; and third, go to mediation. Trial is stressful and the result is always uncertain. It is expensive, both in dollars and in time that could otherwise be invested more profitably. In a settlement conference, the settlement judge tries to force a settlement by criticizing your case and opining as to the likely result if the case is tried. This process, which is often successful, is coercive. Mediation, on the other hand, allows the clients to control their destiny rather than rolling the dice in trial, or being talked out of a trial in a settlement conference. In mediation, the client makes the decisions.
Whose case is it?
The client’s. Most clients and their lawyers really want to settle. My job as mediator is to lead them to a point where the interests of both (or more) sides converge. I am persistent, but I will not harass or cajole a party into doing what he or she does not want to do. Parties settle when they perceive that a settlement is in their best interests.
Frequently, emotional issues block resolution of the dollar issues. Emotions (such as hurt feelings, resentment, anger, outrage, hostility, and embarrassment) must be recognized and dealt with before addressing financial or business issues. I find it essential to help the parties understand and set aside the emotional blocking issues, usually in separate caucuses, before proceeding with the legal and factual issues. That is not to minimize the importance of emotional issues. The parties need the opportunity (which does not exist in a trial) to express them and work through them.
When should a case go to mediation?
Only when counsel know their case. A settlement improvidently entered into cannot be set aside in California on grounds of fraud or mistake. Home Ins. Co. v. Zurich Ins. Co., 96 Cal.App. 4th 17 (2002). In California, finality trumps fraud, unlike in most other states. Settlement does not take place in a vacuum. It must be based on careful consideration of the facts and law. That is not to say mediation should never occur early in the case. Counsel will know when their case is ready for mediation. Be wary, however, of unsworn representations. If a decision to settle is to be based on representations by the other side, include representations and warranties in the settlement agreement.
At what point do we talk about dollars?
Later rather than sooner. I rarely discuss money or allow the parties to do so early in the mediation. Demands and counters made too early are rarely helpful, other than to demonstrate that the parties seem to be too far apart to be able to settle. E.g., a $1 million demand and a counter of “costs of defense.” Instead, I probe the facts and law, most often in caucus with one side and then the other, to gain a sense of what each party might be willing to do. Invariably, where experienced counsel know their case, I find that the parties are not far apart. This process takes time, but it is time well spent, for it usually leads to a settlement.
Creative solutions are available in mediation, and not elsewhere. In trial a judge rules up or down, often without pleasing either side. As mediator, I look for creative solutions that benefit both sides.
Is there a “right” result?
Not unless the parties agree to it. As mediator, I try not to impose my views as to what is right or wrong Judges do that. When I urge a party to change his or her position, it is always in the context of what the other party can reasonably be expected to accept.