Before getting to the meat of the post, dear readers, I just had to share this comic that my dad called and told me about tonight:
The only thing that confuses me is…does this mean that Little Miss Law isn’t a published author????
Anyway, today I experienced for only the 3rd time in my career the joy that is mediation. As you lawyers and non-lawyers alike probably understand, civil litigation is…well, not exactly warm and fuzzy. In the best case scenario, the relationship between the plaintiffs and defendants’ counsel is cordial; in the worst-case scenario, it’s World War III. Or there is the lethal combination — nice to each others’ faces with a vicious letter-writing campaign. (It’s much easier to be nasty in a letter when you have time to think about what snarky, well-phrased thing you want to say.) In this adversarial environment, mediation creates that glimmer of hope that maybe, just maybe, the parties may overcome their disdain or outright hatred of each other and come to some sort of agreement.
Most cases settle before they get to trial; but most cases get very close to trial or arbitration before settling. In our case, there was a mediation provision in the purchase agreement, so absolutely nothing has happened in the case apart from us filing the complaint. In this type of situation, the chances of settlement at this point are slim. In our case, the chances were virtually non-existent. Our mediation brief asked for hundreds of thousands of dollars; the other side’s mediation brief threatened a malicious prosecution action and sanctions against us. Even our mediator, a seasoned retired judge who successfully mediated a different case for our (difficult and unruly) client, told us that when he read the briefs, he said to himself, “Oh, shit.”
Isn’t that encouraging?
Suffice it to say, we spent the morning in separate rooms with the mediator shuttling back and forth, spending about 15 minutes total (if that) discussing the case with us and the remaining time trying to soften us up — chatting about anything and everything. He couldn’t get the parties to settle today, but to his credit, he would probably have had an easier time if we had asked him to preside over the Middle East peace talks. The other side’s generous offer in the mediation brief was to “allow” us to walk away and waive their malicious prosecution claims. After the mediation, their generous offer basically changed to “F— off, see you at the arbitration.” (As they trot off to seek sanctions.) Now that’s what I call progress.
Does anyone have any fun mediation stories to share?
1 Comment
November 29, 2007 at 9:59 am
Do FUN mediation stories exist? Mine usually include my client (usually a scorned employee) crying and spewing accusations at the other side (always productive). To cap it off, I usually have to dream up a way to justify some the enormous demand that my client is making (with no basis in reality or ACTUAL damages, of course). Why is the concept of “damages” such a hard concept for a client to swallow? Yes, we actually have to PROVE your damages!
I had one where my client had filed a claim of sexual harassment. She was fired. She got a new job a week later MAKING MORE MONEY. So, no lost wages, benefits, etc. In fact, the defendants suggests (in jest, I think) that she actually pay them. So then she tells the judge (this was a settlement conference) that she has emotional damages. Fine. She tells the judge that she saw a therapist for a period of time. Wonderful. So we get the records from her therapist. Does she mention her work situation even once?? Nope. Endless notes of boyfriend troubles, abortion, etc., but no mention of this “horrendous” work situation.
It sounds like your clients are corporations, so they might be a little more sophisticated (and likely arrogant) than mine.
Good times.