It is funny how sometimes the stars align to suddenly highlight an issue that was nowhere in my conscious brain before then.

Last night, I received an emergency e mail asking if I could help a fellow professor with her class tonight. I looked at my schedule and found I was able to do so and so said “yes”. When the professor told me the topic would be “impasse” and my comments would be welcome, I decided to look up an article by Lee Jay Berman entitled “Impasse is a Fallacy” to refresh my thoughts on the topic. While I know a lot about impasse, I have not really ever sat down to map out its details for pedological purposes. I figured the article would help me do that.

Then, I had a mediation today that did not settle precisely because of the very first reason that Mr. Berman raises in his article; the proper persons were not at the mediation.

The subject matter was the American with Disabilities Act. The plaintiff alleged that she went into a retail facility that did not have a lower counter for a check writing surface and did not have a lowered transaction counter. The defendant contended it did; it met both requirements of the law. In fact, it pointed me to the plaintiff’s own expert report that noted that both requirements were met. So, Defendant was wondering why was this case even filed and proceeding; despite Defendant’s request for dismissal, Plaintiff continued to proceed with it.

At the beginning of the mediation, I first spoke separately with the defense as it was ready to proceed, and plaintiff had not arrived yet. Defense counsel laid out to me how the client did comply with the ADA, pointing to plaintiff’s own expert report as proof  and that this suit should be dismissed.

I then walked into the plaintiff’s room and listened to the allegations.  As expected, plaintiff’s counsel contended that the facility had neither a lower counter for a check writing surface nor a separate transaction window accessible for those in wheel chairs. In response, I stated that the defense was stating otherwise and pointing to plaintiff’s own expert report as proof. In response , counsel advised she needed a few minutes to call her office and check.

After a few minutes, she then asked me if  I could obtain from the defense counsel a copy of the plaintiff’s expert report and provide it to her. I did so.

After reading it, plaintiff’s counsel still stuck to the position that the facility was in violation of the ADA. When I asked her if she could share with me a precise statute or regulation that I could then share with defense counsel, plaintiff’s counsel declined to do so.

It quickly became obvious that the counsel who was there for plaintiff did not know the case and was simply making the appearance. Moreover, when she called her office, she had been told the bottom line that she could settle the case for, no matter what. So, she was negotiating in the blind- not knowing much about the case but trying to convince me (and thus defense counsel) that the case had merit and that plaintiff would win at trial (and that the defense’s logic was in error).  So $X was the least amount she could accept to settle the case. (No doubt, the amount was told to her by his office!)

The case did not settle. The defense counsel who knew the case believed it lacked merit and should have been dismissed while Plaintiff’s counsel, who knew nothing about the case, demanded sums as if the case did have merit.

One of the tools I often use to break the impasse is to have the counsel speak with each other in my office and outside the presence of their clients. Although I suggested it, plaintiff’s counsel refused. I suspect it was because she did not know the case.

So… as Mr. Berman states in his article, “Impasse often occurs because the right people are not in the room.” (Id. at 2.) That was truly the case here.

But, impasse also occurs when the case is all about the attorneys’ fees; whether the case has any merit is irrelevant; it was filed and so the attorneys are entitled to be paid  their fees pursuant to the statute. Unfortunately, this aspect of “impasse” is rarely discussed but it is very much a reality.

In mediation trainings, we are schooled in ascertaining the underlying needs and interests of the parties and what can we as mediators do, to help the parties meet those underlying needs and interests. But, in the real world of mediation, all too often it is simply and only about the money and nothing else matters.

… Just something to think about.

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