I recently attended a mediation that highlighted the notions of the one-shot player versus the repeat player and the imbalance of power that accompanies it.

The case involved a customer ( Joe Doe) and a large company ( ABC Inc.). The customer, Joe  Doe, was unhappy with the services rendered to him by ABC Inc. and so filed a claim with the company. The matter was referred to mediation, and I was selected as the mediator.

For those not familiar with the term “one-shot player,” it means someone who has never been involved in any occurrence or event before, in this case, litigation, and so is new to how “the game” is played. In the case of litigation, it is typically the plaintiff or claimant who is the one-shot player, having suffered an extraordinary event (e.g., a car accident, wrongful termination from employment) and so is suing to seek vindication, retribution, and to right the wrong. Typically, the plaintiff, a one-shot player, wants to know what happened and why, and thus has emotional, cognitive, and/or psychological needs that must be addressed.

The “repeat player,” on the other hand, is typically a large corporation accustomed to being sued. So, to it, the matter is just another file that needs to be dealt with and closed as quickly and efficiently (and cheaply!) as possible. The company views the matter strictly as a business proposition and, from a risk management perspective, wonders what will happen if the matter goes to trial (i.e., what are its chances of winning/losing) and how much it will cost to settle the matter. This became evident to me when I tried to get defense counsel to consider what the plaintiff had gone through from the plaintiff’s viewpoint or perspective, and I was met with an unsympathetic and very business-like reaction.

The repeat player also attempts (and often succeeds) in defining what the “problem” is and the available remedies. Usually, and unfortunately, the plaintiff, the one-shot player, has little say in defining the problem or its remedies or in having their needs met. As I observed, the defense counsel was not willing to consider the plaintiff’s needs and interests but was only interested in settling for as little as possible.

And this is where the imbalance of power comes in. The plaintiff in my case was representing himself. The corporation was represented by its counsel, who obviously had a thorough understanding of the law and potential defenses. Counsel made it quite clear that if the matter did not settle, he had no qualms about going to trial, which meant that the plaintiff would be representing himself in court —a formidable arena for a layman. As the amount in dispute was small, it did not make sense for the plaintiff to retain counsel for trial, as those fees would exceed that amount in dispute.

And so, the mediation proceeded. The plaintiff presented his list of damages in everyday terms, while the defense lawyer responded with legalese or different theories by which ABC Inc. could escape liability.

While I tried to have the parties share as much factual information as possible to level the playing field, this tactic works only so far.  The notion of going to trial was probably much scarier for the plaintiff than to defense counsel and was no doubt a significant consideration in deciding whether to settle.

The matter was settled. I could not help but realize that I had just witnessed the notions of one-shot player versus repeat player, with the imbalance of power it brings, play out in real-time.

I hope the parties are happy with the outcome. At least, it is now behind them.

…. Just something to think about.

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