The Closer

A Mediation Newsletter April 2014

Avoiding the Nitty-Gritty
by James Rainwater

When planning for mediation, counsel should take into consideration the subject matter, the relationship of the parties, the case's complexity, and the client's temperament, to name a few. While we attempt to plan for nearly every eventuality, a disjointed mediation conference can flummox even the most veteran practitioner. If things start sliding downhill, they usually go fast, and there is sometimes little that can be done to revive the conference.

It is this example that prompts me to proffer some advice: Do not get bogged down in the details. If we are negotiating the annual contract for professional ballplayers, then we will likely need more than a half-day to mediate. Likewise, if we are working on the settlement of a divorce's property division, bear in mind how much time is necessary to properly address the estate's inventory.

If time is not plentiful, and the parties only agree to a limited three or four-hour session, counsel should recognize that there is only so much time that can be devoted to various parts of the matter. Though it is not my money - or the attorneys' money, is it really productive to spend the bulk of four hours haggling over credit card statements and itemized expenditures?

As a mediator, I welcome input from both attorneys. I enjoy the collaborative efforts when counsel sets aside differences and strives for the greater good of settlement. What I find unproductive is the "ad hoc committee" feeling of well-paid professionals sitting and scouring receipts and financial statements to prove that one party is only getting $1.25 more than the other.

Mediation is premised on give-and-take - compromise - not perfect, flawless compromise, but a reasonably balanced result. It is rare, in fact quite unlikely, that a resolved matter is ever considered completely equal and palatable by those parties concerned. However, we always have the constraint of time. And as such, we should encourage the parties to avoid the nitty-gritty factors and consider the broader implications of an agreement. It is often said, over-analysis can lead to paralysis. In mediation, it can lead to impasse.

Rainwater Law