Several years ago, in my mid-fifties, I took up the sport of mountaineering. Several friends who were experienced in this sport encouraged me to the point that I began to believe it was possible. What I did not appreciate initially was the amount of work required. It is one thing to put on a pair of hiking boots and walk up one of the many trails available to us in the mountains of the Pacific Northwest. It is another thing entirely to train to climb the tallest mountain in the contiguous United States, Mt. Rainier, at 14,400 feet.
A world-famous local mountaineer, Ed Viesturs, wrote an interesting book about his mountaineering career called, No Shortcuts to the Top. Viesturs’ experiences emphasized that lofty goals are achieved through hard work and persistence, if not also by some degree of luck. There are no shortcuts to the top. In other words, whether you climb a mountain by traveling straight up a ridgeline or back and forth on every switchback, the energy is the same. It is just when you are called to exert that energy.
In mediation, it is also true that there are no shortcuts. We cannot expect to resolve a case without putting in the work to understand the issues. Sometimes the issues are straightforward but often they are not. Often either the law is not so clear, or the facts are even more murky, documents are ambiguous or a witness’s testimony is hard to believe. And there is no way to bring the case to conclusion until you work hard to understand what it all means and how you expect a jury to resolve it in the end. It is a process.
Don’t Try to Shortcut the Process
I mediated a case last month that reminded me of the importance of “process.” Mediation has a process that allows the parties to find a solution to their dispute that they have been unable to achieve up to that point. This case was not a complicated dispute and the lawyers involved were well equipped to articulate the issues both with respect to liability and damages. Since this was a personal injury case, the plaintiff was the only one not familiar with the law or what made up her claim for damages. And she certainly had no familiarity with the mediation process.
This was not true for the adjuster representing the defendant. She had many years of experience and had mediated many cases dealing with the same fact pattern. Her client, a national company that deals with similar claims every day, was not present but was well aware of the case and had communicated its position to the adjuster and their attorney. The adjuster understood that the process of attempting to reach a resolution was just as important as the resolution. And because of this, the mediation took the entire time allotted.
The plaintiff’s counsel expressed frustration on behalf of his client that the mediation was moving too slow. At one point, he said, “Eric, don’t you hate how they play games like this?” When I answered by indicating that I understood how they were viewing the negotiations, I was met with some incredulity.
But the truth was that the adjuster needed process as much as she needed resolution. As she explained at one point, “If the case settles, I may not be asked how we got to the number, as long as it is within my authority. But if the case does not settle, and I have exhausted my authority, I will certainly be asked to explain how I reached my top dollar.” She summed it up by explaining that if she says she went from an opening offer straight to the limit of her authority, she would be criticized for not allowing the process to play out its course. Process was important. Shortcuts were not.
1. What is “Process” in the Context of Mediation?
A good way to think about process in the context of mediation is to start with what it is not. It is not like a trip to the grocery store where you walk in and pick up a half gallon of milk, head to the checkout counter and when the clerk says, “That’ll be $3.12,” you say, “Here you go, thank you very much.” The process at the grocery store is one side sets a price and the other side pays it. Nothing is negotiated after the price is set. You either pay the price or go without milk.
It is also not like a trip to the Souk, or market, in Marrakech. There, the price is subject to active and colorful negotiation. You may ask a rug seller “what is your price?” and you are likely to get a response of “how much will you pay?” If you engage, there will be a series of back and forth offers, at which point you are well advised to start walking away. At that point, you will begin to hear, “What is your final price, give me your final price.” This may be followed by a new set of offers and counteroffers demonstrating that the final price was not really “final.” And then you may strike a deal.
2. Allow the Process to Play Out.
In a typical mediation, both sides understand that there will be a give and take. One side will make an offer and the other side will respond with a counteroffer. The price of the deal is not “set.” The process of reaching the negotiated deal involves a give and take as well as a discussion with the mediator over what issues will influence the outcome should the case not settle. Maybe one side has filed a motion with the Court that will fundamentally impact the value of the claim. Maybe one side has evidence that is yet to be revealed to the other side that will fundamentally impact the value of the claim. The revelation of the issues in these motions or the unrevealed evidence can cause one side or the other to reevaluate a position, even if that position was strongly held up to then.
But it is important to understand that there is a process. One side, either the plaintiff or the defendant, may require process even if it is viewed as a waste of time by the other side. It is important that you not allow yourself to get caught up in the idea that negotiations are taking too long, or the other side is not progressing the way you might like. Allow the process to take its natural course. How many meditations have you been in when the parties were miles apart until shortly before the mediation came to an end and, suddenly, there was a breakthrough. Light could be seen at the end of a tunnel; the summit could be seen over the last ridge. The case was settled.
It is worth accepting the fact that you may not know what “process” the other side needs and while it may be frustrating, you are better served by allowing that process to play out. A good mediator will help you understand that hope springs eternal. Don’t leave right before the miracle happens, my mother liked to say.
Going back to mountaineering for a moment, I put in the hard work. I learned how to climb on glaciers with an ice axe and crampons. I learned how to climb out of a crevasse should I have the misfortune of falling into one. I trained my body to carry a pack with weight up more than 14,000 feet tied to a rope with other climbers in the middle of the night, with only a headlamp to light our way. And on the morning of July 29, 2018, I stood on top of Mt. Rainier. And believe me, it was a process. There were no shortcuts to the top.
Eric Gillett is a founding member and managing partner at Preg, O’Donnell & Gillett. Follow him on LinkedIn at https://www.linkedin.com/in/eric-gillett. He is licensed in Washington, Oregon, and Alaska. He has tried dozens of cases to verdict and mediated hundreds more. A navigator of resolutions, he is a commercial mediator and can be contacted through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. You can also reach him through his website at www.gillettmediation.com and his email at egillett@pregodonnell.com or eric@gillettmediation.com. Mediations are available both in person and via Zoom.
