Bar News - October 18, 2013
Alternative Dispute Resolution: Timing is Everything (in Life and in Mediation)
By: Melinda S. Gehris and Carol L. Hess
Clients often ask how long mediation will take. This question is difficult to answer. Many factors influence the length and pace of mediation. Understanding these factors can lead to a more successful and satisfying result for you and your client.
In our experience, the duration of mediation is often influenced by three time-related factors: The time necessary to 1) digest and process new information, 2) educate parties about the legal process, and 3) sufficiently establish the credibility of a position.
Time to digest and process
Many people arrive at mediation thinking they know everything about the case, but they often have failed to factor in crucial evidence that might persuade a jury, were the case to proceed to trial.
Because the mediator sees the case with fresh eyes, something that was undervalued by counsel or a party may impress the mediator. Consider the man insistent he canít work as a result of an accident, who talks to the mediator about his joy in riding his motorcycle. The mediator might question whether a jury could find that someone who rides a motorcycle should be able to work.
Or, consider this: An insurance adjuster may see photos of the plaintiffís flower gardens and then be more apt to appreciate how the master gardener would suffer from a minor shoulder injury.
In some cases, the plaintiff really is a phenomenal witness. This fact alone might boost the case value (or conversely deflate it).
Parties need time to digest new evidence and consider its relevance to the case. Where insurance companies or other institutions will make payment, a change in valuation often must be processed not only by the individual at the mediation, but also by his or her supervisor.
Time to understand
We know lawyers explain to their clients the risks inherent in taking a case to trial. We also know clients often donít understand how the information applies specifically to their cases. Some parties believe that by telling their story to a jury, they will "win," without a realistic understanding of what "winning" means.
Mediation provides an opportunity for careful review of what is and is not possible in court, as well as a realistic evaluation of the risk of losing, if a settlement isnít reached. The process of mediation itself can demonstrate that, in court, parties rarely express their full position and achieve ideal results through litigation, regardless of which side the party is on. In a personal injury case, the defendant may seek vindication, or the claims adjuster may want to take a hard line. A plaintiff might believe that a large settlement will show skeptical family members that she has not been faking the symptoms of traumatic brain injury.
Mediation allows litigants the opportunity to look at the non-monetary factors impacting their decision-making. In cases involving a death, the litigation itself can keep alive a connection to the deceased. When a child has died in an accident, the parents may believe that settling the case for less than their assumed value is an admission that the child did something wrong or that the parents could have done more to protect the child from harm.
Time to establish the
credibility of a position
Sometimes, we suspect that if each party wrote down at the outset what they hoped to achieve in mediation, the notes would be similar. In many cases, at least one party or counsel wants to jump quickly to the final offer. Doing so is almost always unsuccessful.
Consider the case with experienced counsel who have all the information necessary, understand how that information will be presented at trial, and the potential range of a jury verdict. Even in this situation, the parties themselves need time to digest these factors. Where a likeable plaintiff broke her ankle, can document medical bills of $50,000, has no residual damage or permanency, and one week of lost wages, counsel for both the plaintiff and the defendant might each believe that a reasonable settlement number is $120,000.
If the claims professional immediately responds to plaintiffís demand of $250,000 with an offer of $120,000, the case likely wonít easily settle. Why? The plaintiff would believe she could get more, and the claims professional would be unable to settle without paying more than expected.
Mediation provides an opportunity for parties to establish the basis for their position. It includes involvement of the parties, and investment of time, to be sure each party understands other perspectives. The parties need time to understand why the other values the case in the same range. The "dance" back and forth allows for discussion of the factors that influence settlement value, the issues the jury would consider, and the strengths of the case from both perspectives. Often, that discussion represents the critical difference between settling and not settling, even if everyone is focused on the same settlement range.
How does a mediator handle these factors?
Understanding what the parties need from the mediation is key for any mediator. Highlighting both the conscious and unconscious dynamics helps people understand that the process and pace of the mediation is not personal.
The mediator is responsible for setting the pace. When a mediator engages in what seems to be small talk, it may be that the mediator understands another party needs time to process what has just occurred in an individual session, or that a lawyer has now identified a weakness in the case and, for the first time, must revise his or her expectations and those of the client.
It is critical that the mediator doesnít create irrational expectations in a party based on pace and timing. A mediator must be aware of the secondary expectations created by a set of moves on the part of one party. A slow pace often sends a very clear message about the final demand or offer long before it comes. Likewise, a fast pace might not mean that a party is going to keep making large concessions. Parties can usually adapt to the pace if they understand the reasons for it.
The pace of mediation should never be set to serve the mediator. Mediators must stay attuned to the parties and remain diligent in making sure that the pace serves the process and integrity of the outcome. We believe the mediator remains responsible to provide a productive process. Timing is one important element of that responsibility.
Melinda Gehris and Carol Hess are principals at Hess Gehris Solutions in Bow and have been mediators in New Hampshire for decades.