Mediation of civil litigation matters is often approached as a transaction. For example, I will pay you “X” dollars in exchange for dismissing your lawsuit against me. I will do this for you if you do that for me. It is, by its nature, a sterile process, only made dramatic by each participant’s reaction to the other participant’s position. And it works, most of the time.
Some people amusingly describe transactional mediation as everyone walking away a little bit unhappy. But it is worth asking whether that is necessary. Can’t everyone walk away happy, or if not happy, satisfied that the matter is fairly resolved?
When the transactional approach doesn’t work, however, I wonder if a different approach is better. I wonder if an approach focused on the participants’ needs rather than a hoped-for transaction would allow the participants to work through their differences and allow for a discussion which can bring the participants together with a mediated solution.
In many cases, the parties who end up in a room to mediate their claims have spent months if not years building mistrust and resentment, if not hatred, for the people in the other room. Sometimes, this is no one’s fault. It is simply a result of how litigation naturally pits one person against another as they attempt to prove the elements of their claims or defenses and, in that process, actively seek to discredit their opponent.
In one case that I recently mediated, the claims professional pulled me aside and told me, in his view, the plaintiff had been possessed by “the Devil.” When challenged about that viewpoint, it was clear that it was heartfelt even if it was misguided and completely unhelpful to the process of settling the case.
This claims person’s belief, as unusual as it may sound, resulted in a not so unusual feeling: mistrust and hatred. Simply addressing the transaction at hand was impossible because nothing could be done to change this person’s feelings.
But an approach which allows for that belief or those feelings to exist and still allows for the parties to work toward a resolution might be found by transforming the discussion to one where the offended party is challenged to engage in how he would suggest solving the problem. What would he need from the other side to get to the solution offered by the other side? In what circumstances could he live with that solution? This approach allows for extreme beliefs, allows for mistrust, but encourages discussing solutions.
Much can be said about how a person involved in a case such as this would have great doubts about working toward resolution. But one function of a good mediator is to encourage faith in the process. It is easy just to get up and go and call it a day when one side takes an extreme position which feels insurmountable. But sticking with it, accepting the fact the other person has a certain point of view, even if it is in direct opposition to your own, gives the process a chance to work in spite of the obstacle.
Let’s take a different example. In another mediation I worked with the parties to discover whether there was any flexibility around a policy limits demand. Plaintiff’s counsel stood firm early in the day and wanted it communicated to the other side that the case would never settle for less than the policy limit. In the other room, it was equally clear the defense was not prepared to pay the policy limit. It would have been easy to walk away from that mediation. But we didn’t.
Discussing not only the case but also the life led by the plaintiff both before and after the accident that brought her there, allowed me to understand she was more concerned about how to ensure she could fund her son’s college education in ten years than she was about putting a large amount of money in her bank account. Certainly she needed her medical expenses paid, she needed to be compensated for her lost wages, but she was in despair about how she might not be able to save enough money for her son’s education.
And right there we found a reason for hope! With that on the table, I was able to turn the discussion toward how we could solve that problem. And while the plaintiff’s counsel may not have focused on the benefits of an annuity, his client was certainly interested in that as a vehicle to resolve her case. We transformed the thinking from despair to hope in an instant. The case settled for less than the policy limit, building in an annuity to help fund the settlement.
These are just a couple of examples of how transformative we can be when we mediate our cases. If we limit ourselves to a transaction where there is, at best, a winner, and a loser, and at worst, no settlement, then we have limited our ability to serve the best interests of those we are charged to serve, the clients.
Before every mediation, after I have taken the time to review the materials submitted by the parties and talked with the attorneys involved, I take a long moment and free my mind from the preconceptions I have formed through that review process. I try to see a path to the resolution of the case without putting a price on it. Rather than a price, I ask myself what I can do to help others see a way around the obstacles that will necessarily arise as we talk about a solution. I look for the hope that will allow that solution to present itself.
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 or at https://www.linkedin.com/in/gillett-mediation. 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 eric@gillettmediation.com Mediations in person are encouraged.
