In the article that follows, three examples, drawn from my experience as a commercial mediator, illustrate this distinction. In two of these matters I was successful in identifying the real and not the apparent issue at hand. In the third, the mediation failed to settle the matter even though it was possible to distinguish between the apparent and the real.
Example #1- A young couple disputed the division of proceeds from escrowed funds resulting from the sale of an apartment they had bought on which they done a gut rehab with funds contributed by each. The apparent issue was clear enough-how to allocate the escrowed funds between the parties. Each party was financially savvy, but despite that fact (and perhaps because of it), the joint sessions were highly acrimonious. The real issue became clearer in the caucus sessions. The young woman felt that she’d been dumped by the young man who’d sought release from the soured relationship. In caucus sessions, I gave the young woman leave to express her hurt and presented the young man the thought that a settlement was the best way to get a clean start and avoid the time, expense and uncertainty of possible litigation. I knew that I was on the right track late in the day in a joint session when, in a burst of tears, the young woman reached into her handbag and passed the engagement ring the young man had given her across the table to him. That proffer caused the young man to reduce his demand to a point at which the matter settled that very day.
Example #2- A presumably star hedge fund manager faced an adversary with a claim for large money damages. Defendant argued that what was apparently real if one examined the track record described on his fund’s website was obscured by significant though only recent trading losses and other third-party obligations nowhere evident save for his disclosure of them, both making it possible for him to pay only a fraction of the sum due and over time at that. Plaintiff remained dubious. With my help, defendant agreed to sign a confession of indebtedness and offered to the plaintiff, untrammeled access to defendants accountants and bankers to substantiate his financial distress. Plaintiff fully availed itself of this opportunity. The result, after a long back and forth on terms, was a cash and notes agreement that resulted in a settlement.
Example #3-In a then current example of an inter- family dispute two generations long, the apparent issue was the amount of fees defendant was charging her family member partners for managing real estate assets they held in common. In caucus sessions, I was able to persuade defendant to materially lower those fees. What became real as the mediation proceeded was that what plaintiffs really wanted was to totally replace the defendant, something she has to this day, continued to resist. The case was tried and defendant prevailed. The decision was reversed and remanded by an intermediate appellate court, a process that’s been two years in the making. As recently as last week (I always keep track of my cases with the thought that I might be of help to the parties except when expressly instructed by the parties to butt out), defendants moved for summary judgment. Some inter-party animosities are seemingly too deep to break even when it’s possible to distinguish between the apparent and the real
I end where I began. Among the many tools in a mediator’s kitbag should be the ability to differentiate between the issues in dispute that are merely apparent and those that are real, subordinating in all instances, the apparent to the real.