The Hopeless Case
by Michael P. Carbone
Last month I received a letter from a lawyer who had appeared in a case that had just settled. He had said at the beginning of the mediation that he had little hope of settling because the other side was more interested in litigating. He thanked me for persisting to get the case resolved.
The lesson in this letter is that it is easy to misread the opposition. The attitudes that they display often create a perception that the parties are "too far apart." Or, one or both parties may feel that the other side is being "unreasonable."
When approaching a mediation parties should think about what lies beneath the surface. What is the other side thinking that they haven't disclosed yet? Are the numbers artificially high or low? The answer is usually yes.
The common refrains about being too far apart explain why mediation is needed. If the two sides were close, they would probably settle the case on their own. The reason why they need a mediator is that they are polarized.
What are some of the signs that the other side is ready to "get real?" First would be the fact that they have agreed to spend a reasonable amount of time negotiating. Another good sign would be that key players are there. These would include the persons who have authority to settle, or at least the persons who could get the authority.
Demeanor and approach are also important. Unlike a trial mediation is not a search for the truth. It is a "settlement event," and a search for a mutually acceptable solution. The sense that both sides are fully engaged in this search should alleviate the hopelessness that often prevails when parties have been litigating.
In most cases the parties start the day at opposite ends of the spectrum. When the numbers are put on the table, the initial offer sounds like a token response to the demand. And there can be strong emotions at work.
The successful mediator will not allow the parties to give up hope. (S)he will keep the parties engaged until both sides feel that they have been fully heard and are ready to make a deal.
Mediators are not miracle workers, and the secret of their success is not found in a "bag of tricks." It is in knowing that "too far apart" is usually a fallacy.
MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields. His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.
Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases. In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.
He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association. He is also listed on the mediation and discovery facilitation panels of several Superior Courts.
He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.
Michael is a frequent author and speaker on alternative dispute resolution issues. He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.
Additional articles by Michael P. Carbone