The Closer

A Mediation Newsletter November 2010

When to Say "Yes"
by James Rainwater

As with a good game of chess, mediation can offer a near-astronomical number of possible variations to solution, resolution, and settlement. Yet, this unlimited horizon of potential can also become a hindrance. Parties may tend to re-focus their demands and offers repeatedly, to the point where the conference becomes paralyzed with over-analysis. When is enough, enough? At what point does someone "break even" versus a protracted legal action in court?

Something I wish I could survey all attorneys whose clients did not agree to settlement at mediation is this: What percentage of trial verdicts yielded a better result than the last offer made at mediation? My guess would be a number well below half. Ask yourself this: How beneficial was it for your past few mediation clients to go to trial? Plaintiffs typically have over-inflated expectations and receive disappointment more often. While defendants may prevail more often, they are likely to see higher losses than the last mediation offer in those trials they lose.

I have seen mediations where there is a tremendous amount of egotistical baggage brought in by counsel. And, of course, I have seen the converse, where it is the client who has an unusually high sense of self-importance. Yet, what is the most beneficial route for the client? The mediator can help find that path, but either the client or the attorney needs to assist in locating it. Perhaps, a monetary offer that means very little to one party may be enough to assuage the other party even though the paying party may feel it is unfair.

What value does ending a long drawn-out ordeal have? Only the client can ultimately answer that question. I have seen pride take over the decision-making function of a party and derail the mediation. I wonder how much influence that party's pride was able to garner from the judge or jury. We all have a break-even point (a juncture where we will be unpleasantly satisfied), and the mediator can assist the parties and attorneys find it and configure it to an efficient resolution. Not all mediations end in both parties being unhappy. Yet, as part of the dispute resolution process, mediators and attorneys should maintain a focus on the idea of a reasonable settlement, which may or may not be pleasant for the disputants.

Of course, at trial, someone wins and someone loses. Mediation allows both parties to ameliorate their potential loses. When should parties say "yes"? After a thorough review of the mediation "chessboard," parties should look at the logical resolution, tempered with a sense of expediency for the matter. Is it logical to halt a mediation over a request that has very little impact on the accepting party? I am not suggesting that parties roll over and play dead. However, if we are able to discount some of the emotional hubris of either the party or counsel, we will see things more clearly. "Yes" in mediation is more about understanding the totality of the agreement, rather than the obsession of minor points and utterances which bear little actual importance.

Rainwater Law