Vail Daily column: Why settlement often takes exhaustion
July 31, 2013
A couple of weeks ago, I had three mediations in the span of eight days. Each lasted more than 10 hours. None included any break except bathroom breaks. Lunch at each was skipped.
Mediation, you might recall from prior columns, is the means by which a neutral third party — often a retired judge — leads the parties to a lawsuit to their own informal resolution. He or she, in other words, guides, cajoles and encourages them to resolve their dispute before it goes to trial.
While mediation can be “coercive,” it is not “compulsory.” What I mean by this is that although a skilled mediator can flex a little legal muscle to encourage a deal, the agreement which is ultimately reached — if any — cannot be enforced upon the parties. They must agree to how they will resolve their differences or no deal is struck.
At one of the mediations, after about eight hours of slugging away at it, my client confided in me, “I’m tired, hungry and exhausted.”
To which I replied, “Good.”
And to which he answered with a dulled “Huh?”
I said, “It’s good that you’re hungry and exhausted.”
Not sure that he had heard me right, he said, “Uh … why?”
I said, “Because if you’re exhausted, so is she.” I corked my thumb toward the wall the separated the parties into their own rooms.
As a quick aside, mediation is most often conducted by what former Secretary of State Henry Kissinger called “shuttle diplomacy.” In other words, the parties are ensconced in separate rooms with their own attorneys and the mediator shuttles back and forth dealing only with one party at a time.
My client said, “Why is that good?”
“Because,” I said, “that’s when deals get done.”
I shrugged. “Human nature? I don’t know. All I know is that most times deals get done when everyone is tired, frustrated and about to give up.”
His eyebrow which had shot up to his hair line stayed there. He said, “Go on.”
“Here’s the way it most times works. Not always, mind you. But most times. By the time that folks get to mediation, they have been embroiled in their particular dispute for at least some period of time.”
Elbows on the conference table that divided us, he nodded.
“In legal terms, they — each of them — are most likely at least a little pissed off. Otherwise they would have resolved the matter earlier and wouldn’t still be in the middle of the dispute.”
‘Hope and dread’
“So they each arrive at the mediation with what’s usually a combination of hope and dread. ‘How much longer is this freaking thing going to go on?’”
“Exactly,” he enthused.
“So usually, mediation goes like this. It starts at 8 or 9 a.m. At first, everyone makes nice. The mediator explains how he or she conducts a mediation and then the dance begins. The mediator starts with one party or the other and shares his understanding of the case. Then, likewise with the other party. By now, it’s 10 or 10:30. The mediator may share with each party what he/she thinks are the strengths and weaknesses of the particular party’s case.”
Having just gone through this, the client nodded.
“Around 10 or 10:30, maybe the first offer of settlement is made. This is shuttled off to the other party. After discussion and deliberation, a counter-offer comes. This can take an hour, maybe more. For the next hour or two, the offers and counter-offers eke out slowly, but it seems to both sides that they are making progress. Then … ”
“ … A sticking point is usually reached and things begin to bog down. Then after it bogs down, things seem to quickly be going to hell in a hand basket. Sometimes tempers flare. Sometimes threats are made which counsel usually keep from being delivered. This death spiral usually lasts for a couple of hours. If people haven’t eaten, then they get cranky.”
“Maybe now, it’s 3 or 4 p.m. People have been sitting here all day. They begin to convince themselves that this has been a colossal waste of time and money. But then, usually, this is when the magic happens.”
“Well not exactly, but once both sides are cranky, tired and frustrated, then for some reason they begin to move together. Slowly at first and then more quickly. The pace of offer — counteroffer quickens.”
“Most times a deal gets done.”
“What’s most times?” he asked me.
“By my experience, 85, 90 percent of the time.”
He narrowed his eyes at me. “Couldn’t we just skip all of the bulls***?”
“Yeah,” I said, “except for human nature.”
By the way, we settled. At about 6:30. Ten and a half hours. No lunch. Tired, cranky. But, all-in-all, pretty satisfied.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.