In the last few months, I've had a few mediations in which the parties, through their lawyers, asserted from the beginning that the mediation process was going to be futile. Everyone believed that resolution was simply impossible but came to the mediation process because of court-imposed requirement for cases pending in certain jurisdictions . Despite the bleak prospects, in each case the parties reached settlement by the end of the mediation.
These cases involved different types of claims and ranged from low 5-figure to 7-figure settlements. The consistent ingredient for the success of the process was open-mindedness. For mediations to lead to resolution, all parties must broaden their view of the case and recalibrate accordingly. Although the parties had firmly entrenched positions after slogging through discovery and dispositive motions, they allowed their perspectives to be shifted through mediation. They came to the mediation with a willingness to hear new information and to hear different angles from which to view the same facts -- even though they all "strongly believed that they would win at trial". This openness is essential to relaxing a hardened position.
In one mediation, the company owner was convinced that his company was not "guilty" of discrimination. Yet, he was open to listening to the risks of a jury not agreeing with him. He even said to me, "I hear what my lawyer says; I hear what the other side's lawyer says, but they are both biased. What do you think about this case? What does Switzerland say?" I responded by reiterating the strengths of his case and pointing out the pieces of evidence that were persuasive for the other side. He was open to hearing of the possibility that a jury may not adopt his view of the "facts" and the reasons why. Without this openness, he would have maintained his resolve at the start of the day to have his day in court and roll the dice at trial.
In another case, the company owner had no desire to settle the case and repeatedly characterized the mediation process as extortion. The plaintiff in that case wanted to take the company through a public trial and "teach a lesson" to her former employer. Since their federal judge would not excuse them from the requirement to mediate, they scheduled a half-day mediation with me. After 8 hours of mediation, the parties signed a settlement agreement and left the process content and resolved. Both sides came to the mediation with a willingness to be educated about their case and openness to hearing about the realities of litigation. Through the process, the plaintiff realized that the company had clearly heard her claims. She also recognized that the desire to teach the company a lesson came at too high of a cost and risk. Through the process, the company recognized the benefits to settlement and closure versus litigation. More importantly, the company owner justified the payment to the plaintiff as the cost of a lesson in effective management rather than extortion.
In both of these cases, the parties and their clients started the process with no hope for resolution yet left with a settlement. Attorneys facilitate this outcome by being open to resolution in even the most (seemingly) hopeless of cases. With this approach, attorneys can authentically counsel their clients to keep an open mind in mediation and to allow their viewpoints to shift. Even as a neutral, at times I find myself surprised when the most difficult cases reach settlement. Resolution in mediation remains possible even when it seems unlikely. The key is to approach every mediation with an open mind and expect the unexpected.
