Q: What is your approach to mediation?
A: I treat every case as a business problem. This often begins with helping the parties work through the emotions that litigation generates. Once the emotions are properly channeled, the parties can focus on the costs and benefits of litigation versus settlement. There may be emotional overlays, especially for people who have never been in a lawsuit, but at the end of the day virtually every case comes down to money.
Q: Shouldn’t I hire a retired judge?
A: As a lawyer who mediated cases for clients, I eventually grew disenchanted with judges as mediators. After years of having the final word, judges often come to mediation with the notion of telling the parties what they should do. They have forgotten what it is like to have a client.
I have found, it is much more effective to sit down with the parties and work through the scenarios of settlement versus trial as opposed to trying to impose my beliefs. Not surprisingly, when you deconstruct a case with experienced lawyers, you often find a common ground for settlement.
Q: Do you “pound the table” and yell at the parties if they are unreasonable?
A: I don’t know any decent lawyer who is intimidated into settlement by a retired judge or lawyer who yells them. If anything, this causes good lawyers to dig in their heels. This doesn’t mean I don’t tell a lawyer or a party that their position is unreasonable. It’s more effective, however, when you explain why their position is unreasonable. It’s important to remember, that at the end of the day, no one settles if they feel they are being humiliated or bullied.
Q: Why don’t cases settle?
A: Nearly every case should settle. Money spent litigating a case is money that would be better spent by the parties either resolving their dispute or in the non-litigation part of their lives. You can by a Mercedes for less money than it takes to try a case.
The sooner you settle, the more money you save on legal fees and the sooner you can move on with your life (and buy that Mercedes). In fact, more than 90% of cases settle before trial.
Cases don’t settle for a number of reasons:
1) One or both sides is making a mistake evaluating the case.
2) There is not enough money to settle the case.
3) One or both parties is too emotionally invested in the fight to settle the case. (Think of the couple whose divorce proceedings last for years. They’re emotionally invested in fighting with each other.)
Q: How do you help parties evaluate their case.?
A: No one can truly know what the value of a case is until the jury renders its verdict. All of us who have tried cases have been both pleasantly and unpleasantly surprised by jury verdicts or judicial decisions.
What I can do is probe the basis of a party’s evaluation by being a “devil’s advocate”.
It is also helpful to probe how much risk a party is willing to take. A client or attorney does not have to worry about looking “weak” in front of opposing counsel when they share their risk tolerance with me. We can then figure out what is a settlement value of a case for the party — a figure which may be different from an estimate of what a jury would award.