Some people have been through mediation. Most haven’t. Here’s a “snapshot” of mediation for “first-timers”:
“I’m not writing a check for $25,000.00.”
“I’m NOT writing a check for $25,000.00.”
“I’m NOT writing a check for $25,000.00!”
“I’m writing a check for $25,000.00.”
For some people this description is a bit close to home. Why would someone write a check for $25,000.00 (or any other amount) when they absolutely don’t want to do it? Because after weighing all of the considerations, such a check is the most appealing option.
It’s like the party who says, “I’m not paying them anything. Why should I? It’s just wrong.
They don’t deserve it. I didn’t do anything wrong. But I also don’t want this to continue.”
Sound familiar? Not all mediations go like this. But some do.
A “melting point” is “the temperature at which a given solid will melt” or in other words, when a solid turns to liquid. Solid things are often hard and inflexible. But something liquid isn’t hard at all and is always flexible. A “melting point” is a concept from physics – but it certainly applies to mediations. Some parties have unrealistic expectations about their claims (or their defenses). They believe that any reasonable judge or jury will see things their way. Prior to mediation it’s easy to retain that litigation view – which is often accompanied by blaming the other side. But at mediation a skillful mediator will help these parties explore the realities, risks and costs of litigation. And after these realities are explored in some detail, the option of paying more (or accepting less) can look more appealing than going forward. After all, settlement means certainty. By settling, the parties know exactly what they’ll be paying – or what they’ll be getting. The litigation costs will stop. And of perhaps equal importance, the parties can stop thinking, fretting, and strategizing about their issue at all hours of the night and day. In litigation the claims, defences, arguments and reality of it all will become a party’s constant companion.
In settlement this all goes away and each of the parties can move on to other things – immediately.
Examining the realities of litigation is like “turning up the heat” in a laboratory experiment.
If the heat gets high enough, one or more of the parties may reach their “melting point” and decide it’s just not worth the fight, the risk, the cost one or both of the parties reach that point, settlement is imminent.
Good mediators recognize this, and instead of simply communicating demands and offers from one side to the other, they’ll help the parties examine the realities of litigation– which can effectively “raise the temperature” at mediation. If nobody reaches their “melting point” then everybody may go home. But if a “melting point” is reached, then instead of going home the parties sign a settlement agreement.
The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter. Persons with legal issues or matters should consult competent legal counsel.
Robert B. Jacobs is a mediator and arbitrator in the San Francisco Bay Area. He mediates cases throughout California. Reach him at Bob7@RBJLaw.com