I have had several mediations lately in which the approach of the parties clashed. The clash can be labelled as the one-shot player vs the repeat player.(See: Is That All There Is? The Problem in Court-Oriented Mediation by Leonard L. Riskin and Nancy Walsh, 15 George Mason Law Review ___ (2008) )

The one-shot player is typically the plaintiff (although it can also be an individual defendant) who usually has very little if any experience with lawsuits and court proceedings. The plaintiff finds herself involved because of a unique experience that in all probability she wished had never happened. (Id. at 3.)

In contrast is the repeat player who has been in lots and lots of lawsuits and court proceedings such that any particular case is just another day at the office. No big deal. In any given lawsuit, these repeat players can be the defendant (if it is a corporation such as an insurance company or other large organization) and the defense lawyer. (Id. at 4.) To these folks- the lawsuit is just another file that must be closed.

The clash comes in how they approach the litigation. The individual plaintiff wants to find out the cause of the issue: why did it happen? What are the whys and wherefores? The plaintiff has emotional, behavioral, and cognitive needs that must be met. (Id. at 20.) To simply throw money at the plaintiff does not answer these questions. But that is exactly what the defense does: it analyzes the lawsuit in terms of risk analysis: what are the defense’s chances of losing (or winning) at trial; and how much is the defense willing to pay to avoid that risk and save time and money by avoiding a trial. (Id. at 4.) It is not concerned about what may be motivating plaintiff other than money or what other remedies other than money may be available. (Id. at 4.)

Thus, while plaintiff has a broad definition of the lawsuit- what happened and why and how a settlement will satisfy her needs and interests, the defense has a very narrow definition of both the problem and how to solve it. (Id. at 4.)

And unfortunately, defendant’s very narrow approach is carried into the mediation without any discussion with either the plaintiff, plaintiff’s counsel, or the mediator.

And the mediator gets stuck in the middle.  In conversing with the plaintiff and counsel, the discussion revolves around the facts of the case, what happened and why. The tone of plaintiff or counsel may take on an air of righteous indignation or frustration in that plaintiff has been injured and defendant has yet to acknowledge it.

Yet, in speaking with the defense, the mediator is confronted by a risk  analysis: Can the case be won at trial? Depending on the answer to this question, defendant will offer very little or a lot of money. If it thinks it can win, it will offer “nuisance” value or something close to it. But, if it thinks it will lose, it will offer a lot more. And however much the mediator tries to cajole the defense into offering a lot more (in response to plaintiff’s demand), the  defense responds that the matter was discussed at length by the company, a decision was reached and that is as high as it will go. While it may be willing to add just a little bit more, it is not going to meet plaintiff’s demand because the powers to be in the company have decided against it. There is a chain of command that must be followed.

So… the approaches clash and unless one side or the other gives in to the other, a settlement becomes difficult at best: in all probability, the matter does not settle.

In assessing the probability of settling any dispute, think about the approach taken by the parties; are they one shot players interested in knowing what happened and why or are they repeat players solely interested in risk analysis?

… Just something to think about.



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