By: Eric L. Hostetler, Esq.
Mediation has proven to be a very beneficial procedural tool in my career so far in resolving cases and conflicts. The basis of its effectiveness revolves around three factors: 1) Plaintiff’s counsel; 2) Defense counsel; and 3) the Mediator. Notice that I did not list as one of the factors the issues of the case.
The reason why: the facts are what they are. By the time the case goes to mediation, some if not most of the discovery has been completed, depositions have been taken and the parties have carved out their legal theories and expectations. So how does a case settle? The interaction of the attorney’s and the mediators plays a huge part.
Here are a few examples from my past to further explain my position. I had an insurance subrogation case about 6 to 7 years ago, simple facts, minimal damage and an uninsured defendant. Our position was clear, willing to work out a settlement and as always, appeared at mediation in good faith. However, the opposing counsel did not like my position and after opening statements abruptly left the mediation. Why? He left to wonder the hallways of the courthouse in the hopes of securing a court reporter. Now, anyone reading this blog has to instantly realize that since mediations are confidential (to promote settlement) the invitation of a court reporter would not only destroy the confidentiality of the process, but would be inappropriate, pointless and could be sanctionable behavior. As to be expected the mediation went nowhere and settlement was not achieved.
Another example is a mediation I participated in where the opposing attorney walked into the room, turned around and exited immediately, advising the parties and the mediator that the mediation should just be deemed an impasse without a word being spoken. Fifteen minutes later, in his opening statement, the attorney advised that he and his client were there in good faith to try to settle the matter. Of course the mediation did not result in a settlement.
The last example is the instant caucus mediation. This happens when the parties are in separate rooms prior to the mediation beginning but then one party refuses to join in the same room and prefers to avoid not only an opening statement but any direct communication at all with the other side. I have had several mediations in my career go like this. The result? Not a surprise, but no settlement.
So the question becomes: is mediation the proper forum to grandstand and posture on behalf of your client? I see this in motion hearings and at depositions; although I am not condoning it, there is no denying it occurs. My question is when you are involving your client, your time, opposing party and counsel’s time, a mediator’s time, a location, all at a great expense: is the goal to grandstand or settle?
Max Lucado once said “Conflict is inevitable, but combat is optional.” And Indira Gandhi said “You can’t shake hands with a clinched fist.” What does that mean? To me, those quotes eschew the spirit of mediation and any other type of conflict resolution. Temperament, professionalism and the ability to communicate your case and your arguments not only to your client, but to the mediator and the opposing side promotes settlement. And at the end of the day, isn’t that really the goal???