Another Day, Another Marvin


Alec was recently selected as a Southern California SuperLawyer in the field of Alternative Dispute Resolution.

Today, I conducted a very contentious six hour mediation. The rubric of the case was legal malpractice. The underlying case involved a suit by the live-in girlfriend of a deceased celebrity, under Marvin, for quasi-contractual recovery of as much as $2 million dollars. The malpractice itself was, as I saw it, clear. The damages, though, as is the usual case, were very slippery. The case was either going to be a home run for the Plaintiff, with a recovery of as much as half the proceeds from a very successful album, as well as live performances, or, on the other hand, a defense home run, with a Marvin case, bereft of the music and of minimal value.

In this case, there was no middle ground. The value was either de minimus or substantial. To exacerbate things further, defense counsel had to answer to an insurance adjuster in the Midwest. On the face of it, this was precisely the sort of case that might scream “impasse” to a less experienced mediator.

Fortunately, the two attorneys had a collegial relationship. I took a huge risk and, after doing a lot of groundwork with each side, decided that further incremental bargaining would not be fruiful. Instead, I caucused with both attorneys and did something very unusual. I told them the range of what I thought the case was worth and that I would make a mediator’s proposal in that range if I had no tools left. But I suggested that if counsel would cooperate with me, I wanted to structure the negotiation to land there or thereabouts. Under this circumstance, both sides agreed to openly discuss where the negotiations were at that time. This was made somewhat easier by the fact that each side had already gone way out of what they believed their settlement range to be.

The case then moved forward. I continued to work at softening up the Plaintiff in terms of the number itself, while defense counsel worked on her adjuster. By mid-afternoon, she told me that the adjuster had made a serious move, but had then hardened his position. Again, I conferred with both attorneys, obtained helpful information from both, and suggested that I make a proposal, given the relatively narrow gap that we had before us. I told them that I would give them the rest of the week to respond to the proposal.

My proposal did several things. First, it was in an area that defense counsel could not have possibly broached without the extreme likelihood of completely losing her adjuster. Second, it was not so far away from the number I’d been working on with Plaintiff that it was likely to cause an end to the negotiation. Finally, and most importantly, I calculated that the number would cause an equal amount of choking and indigestion for each side.

We adjourned after six hours. I felt that I had gone the extra mile and produced a result. Both attorneys thanked me profusely (and separately). This didn’t surprise me, since neither of them gave this case much, if any, chance of settling. The gap had been well over $1 million dollars once I got started. We ended with a gap of no more than $50-60,000 by the time we adjourned.

This story is just another illustration of my prime credo: impasse is just an excuse for not going all out. I don’t believe in impasse, save for the rare exception.

Mediation Happens When You Least Expect It

Because many of you reading this newsletter are professionals in the ADR field, professionals who utilize ADR and/or people who have a personal interest in mediation, it becomes habitual to think of mediation as a process by which a trained professional sits down with two disputing parties, typically in the framework of litigation, a divorce, or some sort of legal-based conflict, and tries to move the two sides to resolution without recourse to the lengthy, expensive and, often, anguishing process of litigation.

I propose that mediation is a far more basic process than that.

The simplest level of mediation lies within ourselves. Each of us has our own competing interests. For a high school student, for example, the conflict may be between getting homework done comfortably ahead of a deadline or going partying with friends. For an adult, it could be between staying up late working on that project or spending quality time with your wife and kids.

Each of these interests creates its own baggage. “What will happen to my grade if I wait until the last minute?” “Will my friends think I’m a geek if I don’t go out with them?” Will my job be in jeopardy if I don’t produce the goods?” “What kind of mother and wife doesn’t give her family her undivided attention?” And each of these conflicts requires a mediation within one’s self in order to move forward. Nobody said that taking a step forward is always automatic.

Even on this simple level of mediation within one’s self, there is often a need for an external mediator. Sometimes that mediator takes the form of a parent, a spouse, a clergyman, a co-worker, a therapist, or one of countless other people whom one is willing to confide in and listen to. And, of course, these problems haven’t a thing to do with a court of law or any other public forum. They have to do with sorting out our own values and applying them to the simple day-to-day decisions that we all have to make.

Sometimes we seek help in groups. There are spiritual groups, 12-step groups, and all kinds of other groups that people join in order to discuss things of mutual interest with other people. This is also a form of mediated discussion in which each person operates under clearly understood rules of conduct. And, again, each person is free to take any advice offered and apply it to his or her own internal conflicts.

So you see, mediation and conflict resolution can be a far broader topic than just the mediation of divorces and litigated cases. I’ll have a lot to say about those areas in future newsletters and blog posts, but that’s a wrap for today.