There we sat, within the confines of the Judge’s chambers, the beautiful library with mahogony shelves filled with law books surrounded us — the judge, my adversary, and the judge’s law clerk off to the corner.
We had not been there more than seven minutes when the Judge, presuming to have gleaned enough information about the case to know how to quantify it, declared (although it purported to be a question): Do you want to know what I think this case should settle for?
No response is appropriate other than, “Yes your honor.” At which point the judge threw out a number and provision for the plaintiff’s attorney’s fees. Never mind that the number represented 100% of plaintiff’s loss and more than 33% for attorneys’ fees…
The problem with this declaration was that it became the “gold standard.” Plaintiff’s counsel was going to work his way to the judge’s recommendation and would refuse to negotiate further.
It was an interesting experience to say the least. Confronted with additional information the judge, having used his judicial power, could not “redo” his number — he would have lost his credibility. He chastised the lawyers for bringing the clients back to the inner sanctum and threatened to force a higher power from the company to show up if the company refused to accept his number.
He jumped too soon, blasting to the end game without a proper development of information. Whether it was due to time constraints or whether it was due to a false sense of having summed up the relevant information quickly — doesn’t really matter.
The process failed. The parties resent the tactics and the lawyers do too.
Mediators may not be cloked with judicial power but there are lessons for us here too. I’m not saying that a judicial settlement conference is the same thing as mediation — because as you can see from the process I described here, it’s not (or at least I hope most mediators approach mediation differently!). Judges are accustomed to making binding decisions and “deciding” matters. Mediators are facilitators and, in theory, the parties are in charge of any decisions.
Respect your power as an intermediary. Allow time and space for the exchange of information. Don’t jump to the end game too quickly. Treat the parties and lawyers with respect.
This case could have settled had it been handled differently.
A good rule of thumb from a mediation mentor: First, do no harm.
Never give up!