The Closer

A Mediation Newsletter June 2014

Jumping Out of the Rut
by James Rainwater

The mediation of certain subject matters often comes with preconceived trouble spots. For example, a personal injury auto accident suit will likely have a wide gulf between what the plaintiff wants and what the insurer is willing to give; a child custody case will often see each parent wanting full-time possession of the children. The commonality of these sorts of matters is that the mediation conference frequently teeters with falling into a quick impasse.

An analogy I like is that of throwing a ball down a bowling alley, while trying to avoid its dropping into the gutter. We stand there and pretend our arm movements can somehow urge the bowling ball back into the center lane. Fortunately, at mediation, we can do more than just gesture, lean, and hope. We can grab the ball before it drops and sometimes while it is in the gutter.

When the mediation momentum falls into that particular rut common to its subject matter, this presents an opportunity for some unique problem-solving on the mediator's part. I believe it is better to present an absurd idea with the possibility of settlement, however small, rather than remaining silent and watching the conference grind to a complete halt.

What constitutes an off-the-wall suggestion? Certainly, something that neither party had ever conceived or considered could be a shock. For the auto accident case, can the insurer find a replacement vehicle for the plaintiff? For the child custody matter, can the parents agree to a non-conventional sharing schedule? Simply because a particular resolution has never been attempted does not mean it cannot work.

When the parties do reach that point of intransigence, there is nothing to lose by proposing extraordinary solutions. Occasionally, great obstinance requires an outlandish response. My suggestion to the mediator and counsel is not to be afraid to jump out of the rut and propose something truly alternative. At its heart, that is the spirit and goal of mediation.

Rainwater Law