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 loathe the idea of talking to one another, preferring instead that every point, every piece of relevant information, every factual or legal argument, and every settlement demand and offer be delivered via the mediator. So when counsel in three different cases in the span of five days not only embraced my suggestion that they talk to one another directly, but used the opportunity to collaborate in reaching a resolution, they scored points with me and, more importantly, each other.
On Tuesday, Robert Ounjian (Carpenter, Zuckerman & Rowley) and John O’Meara (Bremer, Whyte, Brown & O’Meara), mediated an automobile accident claim where liability was admitted. With an impasse imminent, Robert explained to me that there were compelling economic reasons his client could not accept what John clearly considered to be a more-than-fair settlement offer. After hearing the explanation, I suggested to Robert that it might resonate more with John if he heard it directly from Robert, rather than from me. Without hesitating, Robert said “let’s do it.” Robert and John talked openly and honestly, and within five minutes worked out their differences. As John later put it, “our case was textbook” for why it can be invaluable for counsel to talk to one another directly during the mediation process, “but it takes a class act like Robert to make it work at its fullest.”
On Friday, Marc Levine (The Levine Law Firm) and Pam Marantz (Murchison & Cumming) mediated a trip and fall case. Liability and injuries were both in dispute. The opening demand was far too rich for Pam, but she feared responding with an offer that might hamper negotiations. Instead, Pam authorized me to communicate a bracket within which she felt comfortable negotiating given her settlement authority. To his credit, Marc agreed to the proposed bracket and then spent the better part of the mediation talking directly with Pam, working collaboratively with her to address each other’s needs, eventually agreeing upon a settlement figure that both could recommend to their respective clients. Most of the mediation, I was the silent observer!
The following Monday, Gerry Marcus (The Law Offices of Gerald L. Marcus) and Paul Ash (Hanger, Steinberg, Shapiro & Ash) mediated another premises liability matter. Liability was not seriously in dispute, but damages — and causation — very much were. Because their associates had taken all of the depositions, Gerry and Paul had never met, but I was certain they would like, respect and trust each other. I suggested a meeting early on to talk about the issues; both agreed. As a result of very candid conversations about client expectations (on both sides), Gerry and Paul were able to avoid posturing with one another, and a case that had been booked for a full day was resolved in less than five hours. Afterward, Gerry said “Paul made the dynamic easy and effective,” and Paul responded that Gerry had done the same and that he was “looking forward to the next one with you!”
Robert, John, Marc, Pam, Gerry and Paul readily gave me permission to use their names because all agreed there are important points to take away from their experiences with one another; points they each want to share with their colleagues: (1) talking to one another during mediation need not be feared and certainly need not be confrontational; (2) mediation, unlike the courtroom, provides the perfect forum for problem-solving; and (3) problem-solving is a collaborative endeavor.
In other words, talking to one another during mediation might make it easier to reach a resolution, which is the very point for mediating in the first place.
Best regards . . .
Floyd J. Siegal