Thursday, December 10, 2009

When Not to Mediate

I am a strong advocate of settlement. Like Lincoln, I believe that lawyers are at their best when they are advising their clients to make peace.* Having said this, I also understand that peace is not always an option. For true peace to be possible, the parties must want it to be the outcome. If either party — whether plaintiff or defendant — comes to the table with an unshakeable demand for unconditional surrender, there is usually no point in coming to the table at all. See, e.g., "We Got ‘Em Cornered!" posted July 11, 2009.

I know, I know; sometimes such a hard-ball attitude may simply be a ploy, and a skilled mediator may be able to help the parties achieve agreement despite such initial posturing. What I’m talking about, however, are the occasional cases where there is no ploy — i.e., when the "no prisoners" approach is genuine. In such cases, it is unlikely that even the best mediator will be able to truly convince the recalcitrant parties to bend, so it is usually better for the folks who want war to simply say so, and decline to mediate.

This is so because an agreement to mediate a tort case usually implies a willingness by all to compromise to some extent. Therefore, the participants usually expect that the others: (a) want to settle; and (b) are willing bend at least a little in order to accomplish (a). Most people, after going to the trouble of preparing for mediation, tend to react unpleasantly when they show up ready to negotiate only to discover that the others are not. This usually results in more than just a waste of time, because the offended parties can be expected to redouble their efforts to prepare for trial and may end any hope, albeit flickering, of a mutually satisfactory settlement later on. This is one of the reasons I am opposed to mediation being required by the courts. See "Should Mediation be Mandatory?" posted May 17, 2008.

Of course, one doesn’t always know whether a refusal to mediate is itself just another ploy. Many hard-nosed negotiators hold firmly to the belief that you don’t reach agreement without saying "BOO!" at least once. See, e.g., "Driving in Germany" posted June 7, 2008. If you suspect that your opponent’s refusal to participate in mediation is mostly gamesmanship, you might consider unilaterally hiring a mediator to approach the other side and do an independent assessment of the situation before you abandon the effort.

If, however, it is apparent after such efforts that the other side won’t negotiate, don’t keep pushing. Instead, make sure your opponent has your phone number in case he or she has a change of heart, then continue with your trial preparation.

* See The Collected Works of Abraham Lincoln, edited by Roy P. Basler, Volume II, "Notes for a Law Lecture" (July 1, 1850?), p. 81.

1 comment:

Joe Markowitz said...

Or as President Obama said in Oslo last night in his "sometimes you have to make war to preserve the peace" speech: "A non-violent movement could not have halted Hitler's armies. Negotiations cannot convince al Qaeda's leaders to lay down their arms. To say that force is sometimes necessary is not a call to cynicism - it is a recognition of history; the imperfections of man and the limits of reason."

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