On September 18, 2006, the Los Angeles Dodgers staged one of the most improbable comebacks in Major League Baseball history.
Trailing the Padres 9-5 in the bottom of the ninth inning, the final outcome appeared all but certain. Then the unimaginable happened. Four consecutive home runs tied the score, sending the game into extra innings. After the Padres reclaimed a 10-9 lead in the top of the tenth, Nomar Garciaparra delivered a two-run walk-off home run, sending Dodger Stadium into a frenzy!
Many of the 55,831 fans who attended the game that day never witnessed the comeback or the celebration that followed. Instead, they listened to it unfold on the radio while inching their way toward the 110 and 101 Freeways.
The fans who left early didn’t act irrationally. Down four runs entering the bottom of the ninth inning, the outcome seemed obvious. Based on the information available at the time, leaving early was entirely reasonable.
The same thing can happen in mediation if the parties and their attorneys conclude they have all the information they need.
The primary goal of mediation may be settlement, but its most vital benefit is the opportunity to obtain information. Indeed, the most valuable information a plaintiff can obtain is how much a defendant is willing to pay to avoid the uncertainty, expense, and risk of trial. For a defendant, the most valuable information is how little a plaintiff is willing to accept to avoid that same uncertainty, expense, and risk.
That information rarely emerges at the beginning of a mediation. It develops gradually through proposals, counterproposals, risk assessments, and candid discussions facilitated by the mediator. Demands that appear immovable often soften. Offers that seem inadequate frequently improve. Positions evolve as the parties gain a better understanding of the strengths, weaknesses, risks, and costs associated with continuing the litigation.
Occasionally, however, one side becomes frustrated by the pace of negotiations, discouraged by the other side’s posturing, or convinced that further discussions will accomplish nothing productive. Based on the information available at the time, ending the mediation early may seem like a perfectly reasonable decision.
And sometimes it may be. More often, however, important information has yet to emerge.
Parties who leave early seldom learn the other side’s true position. They also lose the opportunity to determine whether the remaining gap is genuinely unbridgeable or simply uncomfortable.
Experienced negotiators understand that perceived impasse and actual impasse are not always the same thing. Some of the most meaningful movement in mediation occurs late in the day, after both sides have exchanged sufficient information to reassess assumptions, reevaluate risk, and reconsider positions that previously seemed fixed.
Not every case settles. Some mediations do reach a legitimate impasse. But parties who remain engaged until the process reaches its natural conclusion almost always leave with greater clarity, better information, and a deeper understanding of the dispute than they had when the day began.
Fans who left Dodger Stadium early that night were convinced they knew how the story would end. They were wrong.
In mediation, an early exit may prove to be a self-defeating strategy.
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.
Best regards . . .
Floyd J. Siegal