Thursday, June 11, 2015

Mediation & Arbitration Section: 4 Common Blocks to Settlement

By James W. Whitney

Access to a jury of their peers is the vehicle the parties have chosen to provide a solution to what so far has been an unsolvable, life-altering situation for at least one of them. They believe in it, and they trust it. The mediation conference is their “first day in court.” Trust is diminished with each deprecating utterance to the jury system, the judiciary, opposing counsel, or other anticipated participants in the problem-solving process.

Disparagement of Our Judicial System.
A significant percentage of parties to mediation have been summoned for jury duty. Many have been chosen to serve, and some have been chosen foreperson. Each one, chosen or not, has had to arrange work schedules, child care, pet care, transportation needs, family meals, polished shoes, etc. Each remembers the effort, energy, and expense required in preparing to show up for performance of their civic duty. Contrary to popular belief, those not chosen to serve often express great disappointment that they were rejected.

Do not insult these citizens by telling them their failure to settle their present dispute leaves the outcome to a panel of six fellow citizens composed of: 
“people whose only qualification to serve is being an adult with a driver license”; or
“people not smart enough to get out of jury duty”;
and other remarks even more derogatory.
A better practice is to ask a party at the outset if they have ever been summoned or served as a juror, followed by a statement regarding how much we value the jury system.

Derogatory Remarks About Opposing Counsel.
The parties want to believe that the settlement proposed to them was reached by a highly trained professional acting on their behalf in opposition to a worthy opponent. No one advertises the fact they just beat the neighborhood weakling. Let the client know how hard it was to reach this decision. Don’t puff, be accurate, and always be the client’s champion!

Derogatory Remarks About Judges.
These should not be permitted by the mediator. Unfortunately, they are generally uttered without warning. Leaving the mediator with the unfortunate choice of either terminating the mediation for reassignment to another mediator or lecturing the person attacking the judiciary.

Derogatory Remarks About Potential Expert Witnesses.
Parties’ self-evaluation of their case cannot reasonably be expected to weigh the potential testimony of a future expert witness once they have been advised that the witness: 
“is nothing more than a hired gun,” or
“will say anything for whoever pays him/her,” or
any other remark intended to convey the impression that the jury will not give serious consideration to that expert’s testimony.

Veronica Dagher’s article “Five Ways to Get a Better Deal in Mediation,” The Wall Street Journal, March 2015, page B8, offers a great formula for reaching resolution at mediation: 
1. “Prepare emotionally.”
2. “Follow the money.”
3. “Choose the mediator carefully.”
4. “Show empathy.”
5. “Have a backup plan.”