Negotiation News: Volume 3, Issue 5
In the previous issues, I discussed the issues of forgiveness and reconciliation and how you might go about approaching and dealing with them in mediation. In this issue, I’m discussing follow up and persistence on cases that don’t settle at the mediation. I hope you find this issue of Negotiation News helpful and informative in your practice.
Persistence and Follow-Up
The overwhelming majority of cases that the parties settle do so during the mediation session(s). Since between 94-96% of all civil cases filed resolve before trial, with few exceptions, it’s simply a question of “when” and not “if.” There are simply few better ways to get a case resolved than when lawyers and parties are in the same office, even if they are in different rooms. If a crucial question arises and needs to be put to a party, the freedom to ask it face to face if necessary is extremely valuable in addressing issues that are driving the dispute.
But there are always those cases that won’t resolve at the mediation session. The reasons may vary, but in my experience, if significant in a pre-mediation position is required and there’s not sufficient time to digest the realities of settlement, the mediation simply has to continue telephonically or in a second session. Sometimes, a drive home, a night’s sleep or even longer (i.e., a deposition or a document production) will clarify things.
If the case or dispute is going to be one of the 90+ percent resolved soon after mediation, quite obviously, the mediator has to follow up on the case. Sometimes a light touch can do the trick, other times considerably more persistence is necessary. We are all busy, and the nature of what we do is to “move on to the next fire”, but where there is a will there is almost always a way to structure an agreement. Even if the case proceeds to trial or arbitration, it is still important to leave open the possibility of a phone call, text or email.
In one case I recently mediated, “Part One” of the dispute originated in February 2013, and was ultimately resolved in April 2013. “Part Two” was mediated in April 2014, and was just resolved at the end of August after dozens of phone calls, emails, messages, etc. The credit definitely belongs to counsel and the parties for keeping things moving despite discovery, numerous motions and other obstacles, but having a hand in keeping the communications going, making suggestions and overcoming obstacles is something of which I am quite proud to have been a part.
Indulge me a brief story: When he was called upon to try to mediate the Northern Ireland dispute in 1998, Sen. George Mitchell must have listened, ad nauseam, to each side’s repetition of ancient hatreds, dogma, refusals to even be seen with the other sides, etc. In a land where Sinn Fein murals celebrate the quest for Irish unity among Catholics, and “Remember 1690” (that’s the year 1690!) murals celebrate William of Orange’s Victory in the Battle of the Boyne establishing a Protestant majority in Northern Ireland, there was no room for half measures. It took over two years, and the accords actually came together rather quickly in the last few weeks. Mitchell would say later that he would always listen, and would always remain available to do so. There was always hope because there was always communication, and there was always a place to vent and let off steam.
Agreements can and should be made, and it is incumbent upon the mediator, with the help of the parties, to keep communication open and moving. Don’t let go, don’t get too busy and don’t give up. Pick up the phone, write and email or send a text that you want to talk. Over 90 percent of your clients will thank you!
- Reduced Fees For Smaller Cases
I offer reduced fees for smaller cases. Under the former LASC ADR program, cases in which the claimed damages were $50,000.00 or less were eligible for court-ordered or party pay mediation. In an effort to continue to serve the parties who have cases with claimed damages under $50,000.00 with one plaintiff and one defendant, my fees will be reduced for the duration of the mediation, with no increase after three (3) hours. My half day and full day rates remain the same for cases remains the same for cases where the claimed damages in dispute are above $50,000.00 or with more than two parties. Please feel free to contact me to discuss at 818-616-8500 or [email protected].
A portion of mediation fees generated will be donated to a charity of your choosing. When booking your mediation, please direct me to the website of your charity.
Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. He can be reached via telephone at 818-616-8500, at www.judgemediation.com or via email at [email protected].