Negotiation News: Volume 2, Issue 2

Hard to believe it’s April, but that means springtime, always a welcome time of the year for the baseball fans among us.

The last newsletter dealt with the drastic changes that are coming to the Los Angeles Superior Court.  These changes include the elimination of the court ADR program.  By late June to early July, the cases that have been referred will need to be completed.  I have tried to address this with a revised fee structure for cases under $50,000.00 that I hope will still allow parties to use mediation in a similar manner as they had before.

In this edition’s newsletter, we deal with the benefits of litigation, but offer a brief explanation as to why 96% of cases still don’t go to trial, and offer an explanation as to why.  I hope you find it informative.

• Tell Me Again: Why Are We Settling This Case?

The article in this edition discusses some of benefits of litigation and offers a few reasons as to why, despite these benefits, 96% of cases settle or otherwise don’t go to trial. As always, I welcome your commentary.

Tell Me Again: Why Are We Settling This Case?

Mediators (including myself) write about mediation. So many of the articles, the posts and groups in LinkedIn®, twitter® and many other study and professional associations extol the benefits of mediation. The articles are typically variations on the following themes: confidentiality, certainty, avoiding the hardships of the adversarial process whether it is trial, arbitration or otherwise, retaining control over the outcome, putting the matter to rest once and for all, avoiding adverse publicity, etc.

But how many mediators explain in detail the advantages of litigation to mediation especially to those participants who are new to the mediation process?

First and foremost, they must know that they have the right to have the matter heard publicly in court, before a judge or a jury, to have evidence introduced for and against, and have the trier of fact render a decision. Within the rules of evidence, the facts come out, the witnesses are examined and cross examined. The case is argued, and the decision or verdict is reached.

If there is an error at trial (#1 of which is the “special jury instruction”), then the aggrieved party has a right to an appeal to have the appellate court decide whether this error requires a reversal of the judgment and a retrial of the case.

The stats after mediation are pretty straightforward as well: The percentage of defense verdicts and low dollar verdicts on more questionable liability cases is much higher, but when plaintiff obtains a verdict on a stronger case, the dollar verdicts tend to be larger than the results obtained in mediation.

When the litigation advantages are explained during the course of mediation, few plaintiffs or defendants have found litigating more appealing than mediating a mutually satisfactory agreement.

So why do 97% of cases end in resolution, dismissal or summary judgment, (with the great majority being resolved), even among the parties who come in with tremendous anger, hard positions or righteous indignation to “make their point” or be “vindicated”? If the process is carefully managed (another article for another day), even they often resolve their disputes.

Once the legal issues are raised and addressed, I have found that the basic human needs that are addressed in mediation are generally stronger than the need to maintain positions, anger or righteous indignation. The adversarial process may perpetuate these emotions through the “back and forth” of competing positions of “righting a wrong” versus “failure of proof or harm”. And so it goes until a trier of fact reaches a decision.

On the other hand, mediation and problem solving outside the adversarial process addresses these “positions”, but also addresses the basic human needs of security, economic well-being, belonging, recognition and control over one’s life. (Fisher, Ury, and Patton, (2d Ed. 1991), Getting to Yes, New York, Penguin Press). These needs are most often addressed with the resolution of claims monetarily, but not always. There is the well-known case example used in mediation training involving the mother and father who had lost their son because of the negligence of a municipal employee who drove across a bike path at a park without looking. The mediation ground on all day with the parties still far apart monetarily. Finally, well into the evening, the boy’s mother said, “I just want my son to be remembered!” The lawyers and the mediator were all surprised. Soon thereafter, the city agreed to re-name the park and add a memorial plaque. The financial issues were soon resolved, but the real, true interest of “recognition” could never have been addressed by a trier of fact in court.

One of the maxims of Sun Tzu in The Art of War, written some 2,500 years ago, emphasizes the importance of allowing one’s opponent to lay down his or her weapons with dignity while saving face before a war becomes necessary. This maxim truly sums up what mediation is all about: it addresses the basic needs and interests of security and control over one’s life, while allowing one’s opponent to come to an agreement with dignity and some modicum of satisfaction without having to actually go to trial. Something a verdict or judgment rarely produces.

I hope this has provided a cursory explanation of a few of the reasons why mediation and resolution outside of court is the overwhelmingly preferred method of dispute resolution. Keeping this in mind should help in producing more satisfactory agreements for the participants and a greater level of satisfaction with the process.

Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. He can be reached via telephone at 818-616-8500, at www.judgemediation.com or via email at [email protected].