Rethinking What It Means to Choose the Best Mediator
Richardson, Mark E., Defense Counsel Journal
This article originally appeared in the February 2013 Alternative Dispute Resolution Committee newsletter.
"I just don't get it," said Sam, plopping into a corner chair in the office of his manager, Sarah, the head of litigation at Emca Manufacturing. "If ever there was a mediation where I thought the case would settle, this was it." He shook his head. "Instead, we impassed. It just goes to show how unpredictable these things are."
Sarah tucked away the brief she'd been reading at her desk and took a seat across from Sam. "I'm sorry it didn't settle. But sometimes what seems like an unpredictable result may prove to have been foreseeable when you go back and take a closer look. Can you tell me a little bit about the case?"
"Foreseeable?" Sam said, with a quizzical expression on his face. "I know you are good, but there is no way anyone, even you, could've foreseen how this would turn out. It was a total disaster." He sighed, rubbing his forehead. "Really, there's not much to tell. It was just your run-of-the-mill personal injury case involving misuse of one of our products. They got hurt and allege that the product's design was defective and lacked adequate warnings. We think both were fine and that the plaintiff simply ignored the warnings and used the product improperly. While we certainly don't agree with plaintiffs counsel on her interpretation of the facts, we generally agree on what the facts are."
"You're right," Sarah nodded. "There's nothing about the basic facts of this case that separate it from dozens of others that we've settled easily at mediation." She paused, tapping a pen lightly on the arm of her chair. "What about the plaintiffs lawyer? Is she someone we know?"
"That's one of the odd things. We know her well. Over the years, we've had a number of cases and mediations with Ana and they usually resolve easily. She evaluates her cases pretty accurately and likes to resolve them before trial, if possible. She's tough, but she doesn't play a lot of games. That's another reason why I thought for sure this one would settle fairly readily."
Sarah was quiet for a moment as she tilted her head toward the ceiling in thought. "Was there anything unusual about the plaintiff?"
"Not really," replied Sam. "Pete seemed like a decent enough guy. Fairly smart. Never been involved in a lawsuit before. I did get the feeling that he was a little overwhelmed by the process and didn't trust lawyers that much. He seemed afraid that he might be taken advantage of."
"Interesting, though not that unusual," said Sarah. "Do you think it affected his relationship with Ana?"
"I hadn't really thought about it," answered Sam. "I mean, they certainly seemed to get along fine, but now that you mention it, I do remember Ana saying that she had some client control problems." Sam shrugged. "But I hear that a lot. So, even from a straight-shooter like Ana, I tend to discount a lot of that as posturing--trying to lay the groundwork for a higher settlement by claiming she couldn't get her client to come down as far he should. While I like her, Ana is a tough negotiator and a staunch advocate for her clients."
"I think I'm starting to get an idea where things went wrong." Sarah stood to adjust the blinds behind Sam. The sun streaming in through the window was making it hard for her to see him except in outline. "But just to be sure, tell me about the mediator."
"No problem there. Mary was the mediator. As I'm sure you'll remember, when she was a defense lawyer, Mary handled dozens of cases like this. She's also mediated a number of them and has a great sense of their value." Sam leaned forward as Sarah returned to her seat. "Her style is also wonderful. She starts out by being facilitative, and then, if needed, moves into a more evaluative role. She's highly regarded in the legal community here. By any reasonable measure, anyone would have to agree that she was the best possible mediator for this matter. …