Two guys (“the guys”) decide to buy a big piece of a big ranch to subdivide, build a couple houses and sell them. The seller (the “dude”) would keep the chunk where his McMansion is built. they do all their due diligence and then waive all contingencies. just before the guys close the deal they find out that they won’t be able to build the roads they need after all. To make matters worse they come to think that the dude knew that they wouldn’t be able to do it. To make matters worse, the guys had invested $30,000.00 in studies and plans before they found out about the problem.
The guys terminated the sale agreement and demand back the $20,000.00 deposit from the escrow account. At first they are willing to eat the $30k.
There would be no mediation story to tell if the dude paid them the money. But there is a story to tell and that’s because, duh, he wouldn’t pay. His position: you waived contingencies, you made a deal and neener neener. His words not mine.
Both sides get lawyers with cool heads. The lawyers bring their clients to mediation. The seller is a big gruff dude who looks like he’s ridden a few miles on some pretty rough roads. The guys seem to be a bit more sophisticated but they aren’t Donald Trump’s kinfolk.
Lots of talking and posturing and finger jabbing in joint session. If I remember correctly the parties didn't seem to care for each other all that much. They all said something about the other guy being a */%$^ son of a !*&(*@%$# if I remember correctly. Things get bogged down and the guys offer to take 15 but the seller won’t pay more than 10. In caucus the dude tells me he’ll never pay them a buck over 10 and that’s all there is to it. He is not going to go any further no matter what and he’s ready to leave. It’s a matter of principle.
I meet in caucus with the guys and this is what they tell me: they’ve found out that the seller made the money he needed to buy the big ranch by dint of his skill at poker. He was a pro gambler and made millions before the casinos banned him from the tables.
In light of this, one of the guys glances over at his lawyer, asks her if “it’s OK.” She smiles and nods and he makes his pitch. Pulling out a fresh, cellophane wrapped deck of cards, he says “tell him we’ll cut for the deal.” My jaw drops and I seek clarity. “Tell me,” I say, “what do you want to do?”
“Cut the cards. If we win he pays 15; if we lose we take 10.” I look at the attorney, a woman I've know for a long time, somewhat elegant and nothing if not dignified in her representation, a partner in a highly regarded local firm and not what you would think of as a cowgirl litigator. She smiles and says, “yup.” Yup.
So, reaching into my bag of expert mediator tricks, acquired after endless hours of training and workshops, a wide range of experience in all kinds of cases and even after having read a book on mediation (or two) I say to the guys, “Fine.” Smooth move by the mediator. “I’ll be right back.”
I take the cards with me into the other caucus room where the big dude is looking pretty impatient and seems ready to head back to the hills. I hold up the deck of cards and, mirabile dictu, a huge old “fecal matter consuming grin” plants itself on his face and he says, “They know me! Bring 'em on in here!” “Whoa, pardner, let’s make sure we know the rules of the game,” I say, affecting an accent that no one in my tribe has ever been able to really manage very well. I go over the deal piece by piece, he agrees to the whole megillah. (See what I mean. Ed.)
Just as I get up to go get the guys, the dude calls out to me: “Hey, just one thing, I get to shuffle.” I laugh out loud and give him one of those serious eye-to-eyes and simply shake my head in disbelief. He chuckles and says, “Just kidding, son.”
Well, I go back to caucus room alpha and tell the guys “Let the games begin!” Off we all trundle to the big showdown and it’s like these boys have been hangin’ together since they were kids down at the crick. (Fine, I’ll stop this now. Ed.) There is laughing and there is handshaking and a great slapping of backs. There is hand rubbing and joking and nobody can find a cigar.
We all sit down. I repeat the rules of engagement, everyone says yup again and I unwrap the deck. I shuffle the cards. One of the guys cuts. Jack of clubs. The dude cuts. Six of hearts. Uproarious laughter. Hugging! I mean hugging! The dude and the guys are hugging each other and laughing uproariously. The dude pulls out his check book and cuts one for $15,000.00 on the spot. Guess we won’t be working out the details of the deal much further on this one.
As the sun sets outside the corporate tower where the mediation is conducted I overhear the guys and the dude talking about how they can figure out a way to work around the county and still make some money developing that ranch. Only this time as partners. No kidding.
Musings for Mediators
All of us mediators talk about the power of mediation to transform and presereve the relationships between parties but, honestly, how often does that really happen in the general civil field after all? From what I can tell, most of the cases that we see as mediators don't get even get close. Maybe it’s just me, but I doubt it.
Here’s a case in which it seemed to be cut and dry, plain and simple about the money. How much can the guys get back out from the dude and how much can the dude keep of the 20k? What made the difference, I think, is that the guys were savvy enough and willing enough to meet the dude where he lived. The dude was mightily attached to his bottom line position and didn't see a way out of it that would allow him to keep his face. He was not about to make a self actuated compromise off the number he came in with. He had defined his own dignity as dependent on keeping the promise he had made to himself not to cave.
The big change came for him when he was given a way to get off that hook. If he lost the cut, it wasn’t actually him doing it. It was the luck of the draw! This wasn’t any longer a question of dignity, self worth or esteem. The cards allowed him to externalize the decision making and to compromise.
Another piece of this is about recognition. I believe that the big “emotional” or relationship change that was so dramatically demonstrated when the guys came back to cut the cards had a lot to do with the fact that the dude felt “seen.” These guys knew him and had made a step toward him, again, to meet him where he lived. Hmmm, maybe that Bush guy (no, the one from my tribe who wrote The Promise of Mediation not the one who hung out with Ken Lay) was on to something.
Finally, I see something about my own practice as a mediator. This resolution and the way it happened wasn’t my idea. This was a place where, once I clarified the deal (my major contribution), the best thing I did was to just get the hell out of the way and make room for the parties to do what they wanted to do. Oh yes, and shuffle the deck.