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Pinning the Tail on the Donkey Blindfolded

by Phyllis Pollack
March 2014

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

Not every Plaintiff wants to settle her lawsuit. Some, who are wealthy and have time on their hands, enjoy the "game" for the sake of the game. Some plaintiffs are risk takers who enjoy the "ride."

I learned this once again in a recent mediation, forcing myself to remember that as a mediator, I cannot force people to settle. Self determination is what mediation is all about; one of its core principles.

The case was simple enough; a plaintiff decided to have solar panels installed in her home and later claimed that the panels did not work as advertised, did not reduce energy costs as advertised, burned out and had to be replaced. Consequently, plaintiff sued several defendants whom she claimed were involved in the sale and installation of the solar panels for breach of contract, breach of warranty, fraud et cetera.

At the mediation, I learned that the plaintiff was wealthy and retired and viewed this as sort of a "game"; she was a gambler who really did not care if the matter settled or not and did not really take it all that seriously. She had all of the time in the world to sit in trial for two weeks.

At the end of the mediation, the parties were about $20,000 apart and neither side would move any closer. At that point, the gap could not be bridged.

A few weeks later, defendants called me to ask that I call plaintiff's counsel to find out if her last demand made at mediation was still viable. Defendants appeared ready and able to bridge that $20,000 gap. In essence, defendants wanted me to ask that if defendants came up with the last amount demanded at mediation, would plaintiff accept it. As J. Anderson Little mentions in his book, Making Money Talk ( ABA publishing, 2007), this is a tactic defendants often use to allow defendants to save "face"; they do not want to go to their best number if it will not settle the case. (Id. at 176-7)

So, I called plaintiff's counsel with the hypothetical demand to which plaintiff counsel responded that she refused to deal in hypotheticals. For her client to respond, the offer must be a definite one. When I explained that the use of the hypothetical is a "face saving" device, counsel would have none of it; she would not negotiate this way.

So, I spoke with defense counsel who got quite upset at plaintiff's response as they had previously offered a slightly lesser amount to which plaintiff said no but would not provide a counter proposal. Defendants requested that I call plaintiff's counsel with two simple questions; was her client interested in settling and if so, what was her demand?

I called plaintiff's counsel with these questions. She consulted her client and called me back a few minutes later. Yes, her client was interested in settling, but her client had no demand. Rather, counsel advised that defendants should make a definite offer, and plaintiff would simply state whether she accepted or rejected it, probably without making a counter.

When I tried to discuss with plaintiff's counsel that this style of negotiation would not lead to a settlement; that no defendant was willing to play pin the tail on the donkey blindfolded, counsel was unwilling to engage in this discussion.

I advised defendants of this response; the defendants will move the litigation forward.

I cannot force people to settle. I do not know if the difficulty in reaching a settlement lies with plaintiff, her counsel or both. I strongly suspect that there other motives driving plaintiff and counsel forward. Plaintiff has filed for leave to file an amended pleading to add additional defendants and claims which I suspect is viewed as providing a greater return later on. (Sunk costs?) While defense counsel has discussed the weaknesses of the case with plaintiff's counsel, the latter has given those arguments short shrift (a case of reactive devaluation!).(I, too, tried to discuss the weaknesses of the case with plaintiff and counsel to no avail!) Depositions have not been taken so perhaps plaintiff and her counsel do not know precisely the nature and extent of the "other side" of the story. That is, I suspect that both plaintiff and counsel are still looking at this matter with "rose colored glasses ", ignoring the ole' adage that a "bird in hand is worth two in the bush."

I will keep my eye on this one; it will be interesting to see how it turns out.

....Just something to think about!

Biography


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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