Published: December 2018
By: Lawerence Gordon
Mediation is the process by which disagreeing parties come together with a neutral mediator in order to attempt to resolve their differences. The success of this process depends heavily on the attitude of the parties and the skills of the mediator. Some mediators simply shuttle offers back and forth between the parties. However, a good mediator delves into the meat of the case and encourages parties to consider both the weaknesses and strengths of their position. One of the most common complaints made about mediators by attorneys is that all they do is shuttle offers back and forth. While this is true of some mediators, it does not apply to all. A good mediator who truly understands the process and the heart of the issues can make a real difference.
Every industry has its own language and style. In real estate, the key word is location, location, location. In mediation, the keyword is listening, listen, listen. If one truly listens, the opposing side will let you know what they really want. What they really want can be far different than what they say they want. I sincerely believe that the vast majority of cases can be resolved at mediation. It often boils down to finding that button that needs to be pushed to get the case settled. Listening and communicating with all parties is what usually leads to resolution. Listening and getting to “YES” go hand and hand.
I recently served as the mediator on a case that involved a subrogation issue. A corporation was suing a young man who was a ProSe litigant. After doing my opening, I chose to speak to the representatives of the corporation first. When I asked if they had done an asset check on the defendant, the corporate representative quickly said no and indicated that it made no difference. They appeared more interested in teaching him a lesson than recovering the $30,000.00 that they had lost. They did not know what the defendant did for a living, if he was married, had children, good credit, bad credit or assets. They were at the mediation because it was court ordered and a desire to punish the defendant. My initial meeting with the corporate representative and her attorney lasted about 25 minutes. It was clear that I had to gather the appropriate information needed to get this case resolved. I had to find that button to push in order to get this case settled. I excused myself to go caucus with the ProSe defendant.
When I walked into the room, he was sitting there with his face in his hands crying. He said, “I don’t know what I am going to do. I have nothing. “He drove an old car and owned no assets. He was employed as a delivery driver earning $13.00 an hour plus whatever he earned by way of overtime. He was married with two children, one of whom was sick. The unpaid medical bills totaled several thousand dollars. His wife did not work outside of the home. Her income if working would have been eaten away by the cost of childcare. He was also concerned about losing his job because of the amount of time away from his job to deal with the litigation. I went over every aspect of his finances with him, monthly expenses such as utilities, gas for the car, clothing, rent payment to medical providers, cost of food, etc. were all laid bare. He was left with $32.00 plus the $39.00 per month in food stamps that they qualified for. Even if he was willing to pay the entire $32.00 per month to the corporation, it would take him 937.5 months to pay the full $30,000.00 that the corporation was pursuing. How could I get this case settled? Prior to going back into joint caucus, the defendant had his employer fax over his prior pay stubs.
We laid out the facts surrounding the finances of the defendant and shared the information with the corporate representative. After accounting for every dollar that he earned and the lack of assets, my words were “you cannot get blood from a stone”. This detailed info along with the cost of future litigation made the difference. This case settled. The plaintiff agreed to drop the suit and absorb all cost. In other words, to stop throwing good money after bad. This case settled because I listened and collected the information that the corporation should have gathered prior to litigation. Sometimes, the mediator has to roll up his or her sleeves and do more than just shuttle offers back and forth. Listen, listen, listen and give the parties a reason to settle their case. A good mediator can indeed make a difference.