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Mediations: Thinking Outside the Box

by Phyllis Pollack
June 2013

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack
Recently, I conducted three mediations almost simultaneously. While I have conducted two mediations somewhat at the same time because the first one did not conclude before the second one was scheduled to start (and I do not like to keep people waiting!), this was a first for me.

No doubt, one's initial reaction is that it is a crazy thing to undertake and how much true mediation could there be? In reality, it worked out well; and, believe it or not, there was some true mediation in it, and all three matters settled.

It seems that the same plaintiff attorney and same defendant manufacturer's attorney had three "lemon law" cases that they wanted to mediate together and so arranged with each other and my office for a half day of time in which only the attorneys and I would be present. The actual plaintiffs and the manufacturer's representative would be available by telephone.

I can hear other mediators mumbling under their respective (or collective?) breaths- that such a set up would never work. But, somehow it did.

In one sense, with only the attorneys and me present, it was not a true mediation but in another sense it really was. Because both attorneys were well seasoned and knew both each other and me, we skipped the "dancing" to a large degree. After about one round of proposal and counter proposal on each case, we cut to the chase. We depended heavily on the relationships we had with each other and the trust that we had built up with each other through previous mediations. We also had a lot of joint sessions in which I asked harder questions than I would have if the plaintiffs were present and got more candid responses as well. There was not much posturing as there was no one - either a plaintiff or a representative- for whom to put on a show. And, I was also on the telephone with each plaintiff discussing the various issues with them, at plaintiff's counsel's request.

There was more flexibility in that the defendant's representative-fully aware that three matters were being decided at once, agreed to allocate and re-allocate cash offers among the three as was necessary. Thus, when plaintiffs in the first case demanded slightly more than defendant's representative was willing to pay on that particular case, defense counsel came up with an "outside of the box" suggestion by requesting that we hold the settlement of that one in abeyance and go to the second because there was a possibility that the difference (i.e., the amount sought by plaintiffs in the first matter) could be made up in the second case. ...And defense counsel was correct; the parties settled that second case for slightly more than originally thought allowing defense counsel to allocate (with the manufacturer's representative's knowledge and approval) a little of it towards the first matter, thereby settling both cases.

Having now settled two cases, defense counsel used this momentum (if not success rate) to convince the representative to meet plaintiff's demand in the third case which was slightly more than originally authorized. By this time in the mediation process, we were meeting in joint sessions with candid discussions of the approximate ranges or amounts being sought and of the amounts being offered. Very little "dancing" was being done! Again, I spoke with plaintiffs directly by telephone with counsel present to discuss the strengths and weaknesses of the case. We settled the third case, too. It was quite a productive day.

On reflection, I must say that I did not handle these mediations the way I was taught; it was rather unorthodox. But, it worked and I believe each plaintiff was content with the result. And... in the end... I guess that it all that counts.

.... Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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