Hey Mike. I don’t get it. I go to mediation and we spend most of the day talking about the case, the law, the facts, you know, that stuff we went to law school to figure out. And then all of a sudden it’s like a switch has been thrown and we ignore all of that and just start tossing numbers back and forth like a hot potato. What gives? Why don’t we skip all that gab fest at the beginning and just get down to it?
— Impatient In Inland Empire–
Dear Impatient. First, if you are impatient in the Inland Empire, how do you get to downtown L.A. without blowing a fuse? Helicopter? That traffic’s a bitch.
But I suppose a traffic report is not what you were writing about. For an impatient counsel, your question is pretty insightful. Hopefully you’ll have the patience to make it to the end of this blog entry to find the answer.
Let’s Start At The Beginning — The Target
But first, let’s start at the beginning…with your client. He hired you because he has a dispute with someone or something (although corporations are people too, or so I’ve heard….) One way to resolve the dispute is to bring a lawsuit.
Lawsuits are perfectly good ways to resolve disputes because no one gets hurt … at least not physically. The legal resolution process will be messy, it will be expensive, it will be time-consuming, it may even be embarrassing, and did I mention expensive?, but it will resolve this dispute … one of these years. Justly (in the eyes of the winner) or unjustly (in the eyes of the loser), thanks to the mob wisdom of 6-12 strangers dragged in off the street (with a possible assist from a learned judge and possibly a bunch of learned justices), your client’s dispute will someday … mercifully … be over. This legal dispute resolution process – this trial and possible appeal – is critically important to the mediation process and is the answer to your question. This tortuous trip to trial becomes the target to beat at mediation.
(Hang in there, Mr. Impatient, I’m getting there!)
Beating The Target
In contrast to Mr. Toad’s Wild Trial Ride, mediation is like It’s A Small World, though without the saccharin music. In mediation, the parties try to beat the trial path target by creating options they like better than trial. Mediation is about understanding true needs, desires, interests, wishes, fears, and motivations. It’s then about trying to invent settlement options that address those needs better than the alternative … which is generally continued litigation and trial. If the parties can create a settlement option that they both like better than the target, then they can shake hands and call it a day … a good day. That is our goal in mediation, to create a tomorrow that the parties like better than the trial path they are on today!
For the negotiation geeks among us, trial is generally your BATNA (Best Alternative To a Negotiated Agreement). Every settlement option is compared to the alternative, which is the litigation process and trial, to determine if the settlement proposal is any good.
So What, Mike!
“SO WHAT” you ask? “Why are you telling me this?” I’ll tell you why, Mr. Impatient. The problem is this: the way you analyze the trial option, and the way your opposing party analyzes the trial option, is not the same. In fact, it’s not even close.