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To Mediate Or Not To Mediate Now, That Is The Question

by Phyllis Pollack
August 2014

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

With the upmost respect and acknowledgment to Hamlet's famous soliloquy in Shakespeare's Hamlet, (Act 3, Scen3 1, lines 55-87), the question often arises of when should the parties attempt to negotiate a settlement, through mediation or otherwise.

Some argue that the sooner the better, before the parties become entrenched in their respective positions and the costs of the litigation get out of hand. Indeed, in 1999, the California Legislature enacted an Early Mediation Pilot Program for general civil cases in four county Superior Courts. The pilot project operated between 2000 and 2003. Under the pilot project, the cases were to be sent to mediation as early as 90 days after being filed as opposed to the usual 120 to 150 days. The project showed the value of early dispute resolution: "On average, 58 percent of the unlimited Cases and 71 percent of the limited cases settled as a direct result of early mediation." (Evaluation of the Early Mediation Pilot Programs at at p. 29)

Yet, others argue that one cannot mediate until all of the facts are known; until the discovery has been conducted and the depositions taken. No stone can be left unturned because otherwise, one party may settle to its disadvantage, by "leaving money on the table "so to speak or otherwise, getting "snookered".

Obviously, there is a fine line between trying to settle a case through mediation too early in the process and doing so at "just the right time." I do not know where that line should be drawn as each case is entirely different, depending on a whole host of factors.

For one, and perhaps the most important, is how long is each party willing to engage in a long -drawn out battle, involving serving and responding to a lot of interrogatories, demands for production of documents and taking a lot of depositions? All of this costs money and more and more, litigants are looking at lawsuits in terms of dollars and cents, and not right vs. wrong or "principle". Or, should I more accurately say, that while the litigation may start off principled, the litigants, after receiving and having to pay a few of their counsel's monthly bills, become very cost conscious and begin asking, "how much will it cost to get me out of this?" They want an end to the outflow of money, especially when the prospect of returns are diminishing more and more with the passage of each month.

In truth, the core facts of the dispute are known to the parties before the lawsuit even gets filed. The discovery simply fills in the details and provides the "admissible" evidence for trial should it get that far. But, as we all know, it seldom gets that far; the "jury trial" as we know it is becoming a rarity. For example, according to California's Administrative Office of the Statewide Courts Statistics Report for 2013, there were 22, 532 personal injury, property damage and wrongful death cases filed in fiscal year 2013. Of these, 1,136 were tried by a judge or jury, or approximately 5%. The remainder were either dismissed for lack of prosecution (537 cases) or resolved prior to trial (17, 427 cases). ( at p.100, Table 5D)

Thus, for a majority of cases, resolution is simply a question of when: early on in the process? In the middle of the process? Or on the steps of the court house at trial?

There is one important factor missing in all of this; the true purpose of conflict resolution. Which is, to truly resolve the underlying conflict. Not just by putting a band aid on it by means of having money pass from one side to the other, but to fully resolve the underlying issue between the parties. For example, in a business divorce, there is a lot more going on than just splitting the profits and losses of a business between two soon to be ex-partners. The same is true with an employment dispute- there is a reason underlying that hostile work environment or harassment. Likewise, with a landlord- tenant dispute- again there is more going on than a simple lack of habitability or failure to pay rent What is it? The simple transfer of money from one party to the other neither answers this question nor addresses what precipitated the behavior in the first place. To do this, one must understand the emotions of the parties that are driving the behavior. As one of my trainers often says, disputes are 98% emotional and 2% rational.

For this reason, I suggest attempting to resolve the dispute as early as possible, before parties become entrenched in their positions, before lines get drawn in the sand, and before parties get upset at having spent so much in litigation expenses over "nothing" or wonder to what purpose and become intent on recouping that expense somehow, some way at the expense of the other party. Having an open non-threatening dialogue - (may I be so bold as to suggest face to face?) early on may do wonders to flesh out "what is really going on" and what needs to be addressed that money cannot resolve. To truly settle a dispute, one must get at and address the underlying needs and interests of the parties, and money simply does not do that!

... 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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