In 1968, Paul Newman earned the fourth of his ten Best Actor nominations and George Kennedy walked off with the Oscar for Best Supporting Actor for their respective roles in “Cool Hand Luke.” But the 1967 movie may be best-remembered for this infamous line delivered by Strother Martin, playing the role of the prison warden (“Captain”): “What we’ve got here is failure to communicate.” In 2005, the American Film Institute ranked it number eleven on its list of the top 100 Movie Quotes.
That line came to mind recently — in part because I had watched the Academy Awards last Sunday and in part because a few days earlier I had been conducting a post-mortem on cases I had not been able to resolve during recent mediations. In reviewing those cases, I found what appeared to be a common thread: when counsel failed to communicate with one another prior to the mediation, the parties were less likely to reach a resolution.
The failure to communicate took a variety of forms, but there seemed to be recurring themes:
- In some instances, the parties failed to exchange an opening demand and opening offer in advance of the mediation. When plaintiff then presented his/her demand at mediation, defendant deemed the demand unreasonable and responded in kind, with predictable results.
- In other instances, a “time-sensitive” policy limits demand or CCP 998 Offer had lapsed. Instead of renewing the demand, plaintiff — without advance notice — began the mediation with an opening demand that was significantly higher than the policy limits or the expired 998. Having already rejected the policy limits demand or having allowed the 998 to expire, defendant declined to engage in negotiations unless plaintiff reduced the demand.
- In still other instances, plaintiff failed to share relevant information and documentation concerning damages far enough in advance of the mediation to allow the insurance carrier to fully evaluate its risk when it round-tabled the claim. As a result, the carrier’s settlement authority — based on incomplete information — was inadequate.
- In multiple instances, the deposition of a party, percipient witness, character witness, treating physician or known expert had not yet been taken — even though that person’s testimony was critical to a thorough risk analysis. Consequently, the parties viewed their respective risk so differently that meaningful settlement negotiations became impossible.
- And in more than one instance, one party filed an MSJ after the mediation had been placed on calendar, without having indicated — beforehand — that it was planning to do so.
Communicating fully with the other side is an integral part of the mediation process — and it begins long before the mediation itself takes place. Before you schedule a mediation, I encourage you to:
- Transmit your opening demand or offer and request that the other side provide a response, so that you BOTH know the “size of the playing field;”
- Let the other side know if you intend to begin negotiations with a demand that is higher than a “policy limits” demand that has been rejected or a 998 offer that has been allowed to lapse;
- Ask the other side whether there is any additional information it requires in order to engage in meaningful settlement negotiations, or whether there are any additional witnesses whose depositions should be taken before the parties engage in mediation;
- Extend the professional courtesy of informing the other side if you are planning to file a Motion for Summary Judgment, so the other side can make an informed decision before agreeing to engage in mediation.
In short, if you are hoping for a successful mediation, it’s important to make sure there hasn’t been a failure to communicate.
As always, It would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Floyd J. Siegal