Seeking a settlement frame of mind

One of the most important things we legal professionals can do is to help our clients settle their disputes. Over the years I have developed some approaches that have helped me evolve the parties into a settlement frame of mind. And I would like to share them with you.

I almost always begin my mediation sessions by introducing myself as follows: "Good morning, my name is Judge Gray, and I expect that my name has been mentioned to you by your attorney before we got here. But I was a trial court judge for 25 years here in Orange County and, hard as it is to get my head around it, I retired 13 years ago last January. But, I want you to understand that I became a judge when I was 11 years old, so that's why I am still so young. And I don't allow any cross-examination on this issue whatsoever." (In my view this accomplishes several positive beginnings. First it establishes that I have been around for a while, second it shows I am human and, third it helps to put our situation into perspective.)

Next I say that I have been retained to help you resolve your disputes today. And I usually also say that they should thank their attorney for scheduling a mediation promptly, because mostly the best way to prevail in litigation is not to be involved in the first place. Or if you are already in litigation, try to stop the bleeding as soon as you can, so you can stop paying your attorney $27 or maybe even $29 per hour...

So this is not hey let's go out and take six more depositions and get more bank records, but instead to resolve it today - globally. And notice that I use the word "resolve," because for most human problems, like we have here, there are no "solutions," only imperfect "resolutions." And I often also interject at this point that "Hey, I have an idea. Let's give all of the money in dispute to the attorneys." Then at this point I tell them that I am not here to "do justice," or to "try their case" or "to be fair." I am here to find the lowest number I can get plaintiff to accept and the highest number that I can get defendant to pay, and hopefully those numbers will intersect.

Then I explain to the parties that they will not be able to "hit a home run" today in the mediation, because the outcomes are voluntary and the other side won't agree to your hitting a home run. So if you want an opportunity to hit a home run you will have to go to trial - with all of the financial risks, expenses and emotional costs and delays that most often accompany that result. But you also give up the result of "striking out," because you will not agree to that result. So if you want to resolve the case it will come about that both sides basically hit a "ground rule double." (I feel that all of these points help to focus the litigants on the issues at hand and that some compromises will be in order to settle their cases.)

So, I continue, it is my place, and your attorney's place, to help you make a business decision, which would be to maximize your benefits and reduce your risks. Of course, you are the decision-maker and you can go to trial for any reason you want to. "Not a penny for tribute!" "I want my attorney to show the judge and jury and the entire world how I was wronged," and I want the Orange County Register to have headlines that "Mr. Smith Prevails in Court!" (Of course, probably the newspapers will not care, but that's a different issue.) So in helping you to make a business decision, when I am with you I will focus upon your vulnerabilities. (Of course you have some, like every other person in litigation.) And, if I know anything about my reputation it is that I sometimes tend to be blunt. But over the years I have found that people generally appreciate hearing it "straight from the shoulder" from someone who is experienced and has no vested interest in the outcome. But, cheer up, when I am with the other side I will focus upon their vulnerabilities. So it would probably make you happy to hear me talk to the other side - which you will not because it is confidential. But it would also probably put a smile on their faces to hear me talk with you, which they also will not because it is confidential. So I literally see myself as being in the "dissatisfaction distribution business" because I make everyone unhappy with me. But I think you will like me more tomorrow when you see that your case has been resolved.

So that is basically always my introduction. And then it is almost always helpful simply to listen and sympathize, and then ask "non-confrontational" questions. And then if there haven't been any negotiations so far, I will usually ask the plaintiff to make the first demand. In doing this, I usually say something like, "Well, of course, you are a businessman, so you know what negotiations are. I ask that you make your demand high enough to give yourself some room to maneuver, because it will only get lower from there. But also please make it low enough to give defendants some optimism that the case will settle. So you can caucus while I go and introduce myself to defendants." Then we go right at the negotiations, sometimes with me making suggestions and sometimes not.

Other issues that I stress during our negotiations are that the parties can obtain finality today, but if they go to trial it will probably be another year (?) of being in limbo, which will take a great deal of time away from more productive activities. And then what if one of the parties appeals the judgment? In addition, if this is a case in which attorney's fees can be awarded to the prevailing party, I stress that not only will it not be fun to pay for your own attorney's fees, but imagine how much fun it would be to pay for those of your opposing parties! (On the other hand, I also stress that no party in California is entitled to attorney's fees as the prevailing party: only reasonable attorney's fees. So when I was on the bench I always considered the final result of the case when deciding what reasonable attorney's fees would be in that situation.)

Of course, there are always some situations that provide extra challenges to the mediator. One of those is where the person who made the mistake that gave rise to the litigation is now the decision-maker for that party. If that is the case we should try to articulate the argument that anyone who only knew what this person knew at that time the decision was made would probably have made the same decision. Otherwise, the decision-maker will never own up to having been responsible for the problem. So we will go to trial! And if we lose, we can always blame that stupid jury, or that stupid judge, or even our own stupid attorney. (Anyone but me!)

If the circumstances warrant, I will often openly tell the parties that they would not want to be in my court on a particular issue, because based upon what I know so far I would decide it against them. Of course, what I think doesn't matter, because I will not be their judge, or on their jury, or be their arbitrator. But I am concerned that your judge could very well find against you on that statute of limitations issue, comparative negligence, lack of intent, etc., so you might want to take that into account. I only say these things when I actually mean them, so I use this approach sparingly. But when I do, it is often quite effective.

In addition, often it is helpful to stress the fact that what actually happened in your case - or in any case - doesn't make any difference whatsoever. None. The only thing that matters is what can be proved to have happened. For example, if you had an oral conversation with the opposing party, I can tell you exactly what you said, what she said, what you were wearing and even what time it was. And that is whatever the jury says happened and was discussed. So "if you can't prove it, put it out of your mind" is a good rule of thumb in these situations, because it is the only way we can do business.

If eventually the negotiations stall, I almost always make what I lovingly call a "Mediator's Proposal." This is NOT where I think justice will be done but, I again stress, the highest number I can get defendant to agree to and the lowest number I can get plaintiff to accept. My procedure is that now the negotiations are over, so all I want is a yes or a no. Furthermore, if one side says "yes" and the other side says "no," I will not tell the side that said no that the other had said yes, and I will forget. So you will not hurt yourself in possible future negotiations. But in deciding what number to suggest, I almost always employ what I call the psychology of numbers. That is to say, for example, instead of suggesting the case settle for $80,000, I suggest it settles for $78,750. First of all, every plaintiff sees that as virtually being $80,000, so that is not a problem. But for defendants it simply sounds better. And if they are an insurance company, they will often be seen as heroes for getting rid of that case for under $80,000. I recommend that you also use that approach, because it works. (And it also sounds like you really analyzed the case down to a fine point...)

Finally, if you are like me, I often give myself too much credit when cases settle, and too much blame when they do not. That is the nature of what we do. But helping our fellow human beings to resolve their disputes and get on with their lives is a truly gratifying experience. And as we part company I invariably say to the parties that I hope we never meet again professionally. But, I confess, I do hope that I meet the attorneys again. Life is Good!