tag:blogger.com,1999:blog-5319616996642253456.post2266843780686041125..comments2011-03-02T07:10:56.447-05:00Comments on Mediation Stuff – John Lassey's ADR Web Log: ImpasseJohn Lasseyhttp://www.blogger.com/profile/15644190869922001847noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-5319616996642253456.post-35141546272769218362009-12-20T06:32:39.796-05:002009-12-20T06:32:39.796-05:00Dealing with irrationality is a challenge, especia...Dealing with irrationality is a challenge, especially when trying to help people to see “the value of putting the dispute behind them.” I covered the plaintiff’s side of this in “The Dick Francis Solution,” posted September 17, 2009. From the defense perspective, I find that control by liability insurance companies (usually) tends to minimize the irrationality. When the claims reps say they would rather pay their attorney than the plaintiff, 99 times out of a 100 it is posturing. What they are really saying is that the odds are sufficiently in their favor that they can push harder. <br /><br />Of course, with some insurance contracts the insured’s permission is necessary for the carrier to agree to a settlement. In such cases the named defendants may maintain a “not one cent for tribute” stance. They usually back off, however, when the “hammer clause” is explained to them and they learn that they will be responsible for all defense costs, including attorney’s fees, from that point on and also will be responsible for any adverse judgment in excess of the amount for which the case could have been settled.John Lasseyhttps://www.blogger.com/profile/15644190869922001847noreply@blogger.comtag:blogger.com,1999:blog-5319616996642253456.post-72439186674489115202009-12-18T18:56:16.993-05:002009-12-18T18:56:16.993-05:00I agree with you that impasse is generally caused ...I agree with you that impasse is generally caused by one or both sides evaluating the case incorrectly. But I think there is sometimes something else going on as well. Sometimes the parties are close enough on their evaluations of the case, but one or both sides still has a hard time letting go of the conflict. Say you understand at least in the rational part of your brain that you only have a 50% chance of getting that $400,000 judgment that you believe you are entitled to. But you still hate the defendant's guts and you still believe that in a just world you would get exactly what you think you are entitled to. You might in that scenario want to punish the defendant with further litigation costs, and you might even want to take your chances at trial, even though you know you have a 50% chance of losing everything. To accomplish your goal, all you have to do is refuse to agree to a reasonable settlement number. Same thing if you are the defendant. You might know that the plaintiff could very well be awarded a sizable judgment, but in your heart you know he doesn't deserve it, you hate his guts for dragging you through this frivolous lawsuit, and you hate paying his extortionate demand. So you might refuse to pay a reasonable settlement amount even though you know that your refusal could end up costing you a lot more. (Don't you love those clients who say they'd rather pay you than pay the SOB on the other side of the dispute? They are the ones who keep trial lawyers in business.)<br /><br />So in order to break the impasse, you sometimes have to deal with the irrational considerations of the participants as well as their incorrect evaluations of the case. You have to get them to see the value of putting the dispute behind them.Anonymoushttps://www.blogger.com/profile/12552117060181130126noreply@blogger.com