From Dan Simon’s Blog
An old friend (I’ll call him Frank) called to tell me he was being sued by a former employer (I’ll call him Owen) for improperly taking customers and trade secrets. Frank and his new company (“New Company”) were lawyered up against Owen and had a mediation scheduled with a retired judge. I warned Frank that mediations conducted by retired judges often feel silly, meaningless and frustrating to litigants, and that they achieve, best case scenario, a settlement that both sides are unhappy with. I contrasted that experience with the sort of mediation I provide, where meaningful conversation occurs, misunderstandings are cleared up, and any settlement reached is based on increased understanding of the situation and each other’s perspective. We agreed that we should figure out how I could help this mediation go that direction.
My approach is based on the idea that people in conflict are seeking to make empowerment and recognition shifts. That is, they want to avoid being victimized, and when they gain confidence that they aren’t being victimized, they tend to stop victimizing each other.
Frank and his team decided I could appear as counsel to an additional party (Adam), one who had also worked for Owen, had started to work for the new company, and, like Frank, had never been paid what he was owed by Owen. Adam was not yet a party to the lawsuit, but our team felt it would be helpful for Owen to be aware of cross-claims that would be made against him, if a deal were not made at the mediation. In preparation for the mediation, I sent the following email to our team (Frank, his lawyer, two guys from New Company, New Company’s lawyer, and Adam):
I’m looking forward to seeing/meeting you all next week. Here are some thoughts, which I’m hoping will be helpful in preparing us for the mediation. These thoughts are nowhere near exhaustive. As I see it, the greatest potential of a meeting such as the one we’re having is that things could occur that we could not have predicted – new insights, new clarity, new ideas. So please don’t let my thoughts limit your creativity.
Here are my guesses of things that could happen that would be helpful:
LIKELY GIST OF THE MEDIATION, IF WE DEFER TOO MUCH TO THE MEDIATOR’S IDEA OF THE PROCESS: The judge/mediator bases his credibility on his long career as a litigator and then judge. As it says in his JAMS profile, “he is attuned to the vicissitudes of litigation.” In other words, he knows, as we already do, that litigation is expensive, time-consuming, and unpredictable. If we leave it to him, he’ll spend the day going back and forth between rooms, warning each side that they might lose, and that even if they “win” they might not get paid, and any winnings might not cover the costs of litigation. And he’ll say “a good settlement is one that both sides are unhappy with.” And he’ll attempt to nudge both sides closer together from wherever they start negotiating. To the extent we imagine that he can give us insight into any weaknesses of our side of the case, I suggest we instead rely on our lawyers for that. Neither they nor the mediator can predict anything, but we get it: expensive, time-consuming and unpredictable. The other hope we might have is that the mediator can persuade Owen to back down. But I’m guessing Owen and his lawyer also know what this mediator’s agenda is, and are hoping he’ll have a greater impact on us. This method of mediation is popular with lawyers, because it allows them to rely on the mediator to be the bearer of the bad news, but again, I trust our lawyers to be completely forthright about any legal bad news that we all need to hear. So I don’t think we should waste time pleading our case to the mediator.”
Despite my efforts to improve the quality of the mediation, my predictions in that final paragraph of my letter came true.
Read Part 2 here
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