Resolution Strategies | A Monthly E-Newsletter


GOING THROUGH THE MOTION

A high-school student had sued the school district after suffering injuries during football practice. The school district had filed a Motion for Summary Judgment (“the Motion”) and was certain it would prevail. Over objection, the court had “ordered” the parties to engage in mediation. Understandably, defendant was an unwilling participant in the mediation process and refused to consider making anything other than a “nuisance-value” offer while the Motion was still pending.

Rather than send the parties packing, I decided to explore whether the Motion — instead of being an impediment to resolution — might be used as the actual mechanism to achieve resolution. After all, if the Motion was heard and granted, plaintiff’s only recourse thereafter would be a costly and time-consuming appeal; if the Motion was heard and denied, defendant’s bargaining position thereafter would be severely compromised.  

TALKING POINTS

I’m always surprised when an attorney resists or outright rejects my suggestion that he or she communicate directly with opposing counsel during a mediation. For reasons that escape me, many attorneys absolutely loathe the idea of talking to one another, preferring that every point, every piece of relevant information, every factual or legal argument, and every settlement demand and offer be delivered by the mediator. So, when counsel embraced my recommendation a few weeks ago that they talk to one another directly before engaging in any settlement negotiations, they scored points with me and — more importantly — with each other.  

THE POWER OF BALANCE

As mediators, we perpetually strive to maintain balance. One moment, we may find ourselves balancing the need of one party to vent at length during a private caucus against the risk that the other party will grow restless and impatient. Another moment, we may find ourselves balancing a request that we “advocate” on behalf of one side against our fear that doing so may alienate the other side and result in our no longer being perceived as fair and impartial. Yet another moment, we may find ourselves balancing our commitment to confidentiality against our concern that withholding certain information will make resolution impossible. And yet another moment, we may find ourselves balancing respect for a party’s right to self-determination against our recognition that a particular negotiating strategy is likely to backfire, leading to a response that is contrary to that party’s stated objective.

All of our balancing acts, however, share one thing in common: they are designed to create an environment which will enable the parties to reach their own point of equilibrium, i.e., the point at which the potential upside and potential downside of ongoing litigation are reasonably in balance. Until the incentive to settle equals or exceeds the incentive to go to trial, resolution is unlikely.  

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