My mentor at CPR Institute, former Olin General Counsel Peter Kaskell, once wrote an amusing article called something like “The 10 Worst Reasons Not to Mediate.” I have to find it one day and rip it off as a post.
But I myself had recent occasion to deal with one of those reasons. A defendant was reluctant to comply with the a mediation order in which I was appointed, on the ground that there was nothing to discuss — his client’s defense was absolute and he saw no risk whatsoever in simply participating in discovery, going for summary judgment, and getting out of it. In any event, he had nothing to offer by way of settlement, so negotiations were a waste of attorney and client time for both sides.
Here are some of the suggestions I made:
- Have you budgeted the cost of full discovery, an SJ motion, and (if the motion fails) a trial for your client? Does your client have a plan to recoup those expenses, assuming a win? Is your client prepared to pay those expenses, plus an appeal, plus a judgment with interest, assuming a loss? By comparison, what is the value to your client’s business of stopping the litigation entirely by late afternoon next Wednesday on terms that are business-rational?
- In light of your obviously game-ending defense, why does the plaintiff persist? Has the plaintiff and her counsel been chewing mushrooms? Or, if they are sane and business-like, is there perhaps some reading of the law, or some document or fact, that has persuaded counsel to advise his client that it’s worth it, as a business matter, to incur the continuing costs of this litigation? If so, wouldn’t your client like to know what that is?
- If the facts and the law make it clear to you and your client that there is no reasonable chance of plaintiff’s prevailing, and that, on a commercially rational analysis, the plaintiff (if acting reasonably as a business person) should withdraw the suit to avoid incurring additional costs and fees, would you not want to explain that to them, so your client, too, can avoid further costs and uncertainties of a fruitless litigation?
- We all know that you don’t win every trial or motion you ought to win. Would your client’s business be economically better off with or without the uncertainty and continued financial drain of this litigation?
The mediation has been scheduled.
What about you? What ideas have you put on the table in counseling confident defendants who don’t intend to make an offer, and therefore don’t intend to engage in mediation?