Hardball
October 04, 2012
By the time an attorney walks into a mediation room, he or she has a pretty good idea of how the opposing counsel will behave during the process. Generally, attorneys who act professionally and get along during the discovery phase of a case will act in the same manner during the mediation. However, the attorney who forces their opponent to fight and beg for every scrap of discovery (even though the request is proper) will likely behave consistently during the mediation.
As a mediator, I have found that it is more important for someone to bring the metaphorical “ball” to the mediation, than it is to worry about the party who wants to play hardball. If a defendant doesn’t bring any money to the table or a plaintiff just wants their day in court regardless of the gold and riches placed at their feet, the case will not settle. This is playing “no-ball,” and short of using a 2x4 (which you cannot do!) these cases are bound for trial, unless there is an epiphany or the money to litigate runs out. It is not uncommon for either of these two events to occur.
It should be no surprise that unreasonable people act unreasonably. However, there are parties who are intentionally unreasonable at the mediation, but who are fully aware of their conduct and use it as a strategy. It’s sometimes difficult to know which is which. Those who have an exterior of granite, but whose insides are like talcum powder, usually do not acknowledge any weaknesses in their case before the mediator, but will do so when alone with their client in the privacy of the caucus room. These types of people use this approach as a means to an end, trying to get the best deal for their client. In due course, time, persistence, and an appeal to their interests will wear down the façade.
Those who have the ability to settle the dispute, yet opt to erect a castle
wall and use their favorite word - “no,” can be a mediator’s most difficult challenge. When both parties have the personal stamina and financial wherewithal to litigate until the cows come home, the mediator is challenged with finding a chink in the party’s armor that will prompt a desire to settle the case.
When the typical monetary uncertainties of jury awards, costs of litigation, and attorney’s fees do not adequately motivate a settlement, the mediator might want to consider “time.” Yes, some litigants, especially those who are well heeled, see their time as more valuable than any potential judgment. Important people (or those who just think they are important) will view their personal time as a nearly priceless commodity. It is the mediator’s job to then juxtapose that amorphous commodity against any possible judgment. This will force the hardball player into balancing the alternatives – money vs. time.
Every time I hear an attorney’s bray, “We are drawing a line in the sand. We won’t [take/offer] a penny [less/more] than $ [fill in the blank].” I giggle to myself and then respond, “You had me worried for a moment. If you said you were drawing a line in marble, I’d be concerned. The best part about sand is that the line is easily erased and a new one can be drawn at another location.” It breaks the tension and usually gets a laugh.
Enticing a stubborn litigant to move from “no” to “yes” can be daunting. Unchanged positions will invariably cause frustration to the party that wants to play ball. It may lead to a predictable, “If that’s their final position, we are walking!” Passing that message on to the hardball player will either be met with a, “Let’em go” or a changed offer. If the latter happens, we’ve got a ballgame.
The mediator must be patient and continue to probe the reasons for a hardball player’s recalcitrance. Questioning the reasons for their position may very well bring to light some undetected or ignored risk that will cause the disputant to re-evaluate the case. The goal is to get the parties to play ball, even if it is hardball.
Ultimately, it’s the mediator’s job to let the hardball player know that it’s not necessary to hurl fastballs throughout the mediation. Sometimes a nuanced pitch with some strategy behind it can garner far greater rewards.
It should be no surprise that unreasonable people act unreasonably. However, there are parties who are intentionally unreasonable at the mediation, but who are fully aware of their conduct and use it as a strategy. It’s sometimes difficult to know which is which. Those who have an exterior of granite, but whose insides are like talcum powder, usually do not acknowledge any weaknesses in their case before the mediator, but will do so when alone with their client in the privacy of the caucus room. These types of people use this approach as a means to an end, trying to get the best deal for their client. In due course, time, persistence, and an appeal to their interests will wear down the façade.
Those who have the ability to settle the dispute, yet opt to erect a castle
When the typical monetary uncertainties of jury awards, costs of litigation, and attorney’s fees do not adequately motivate a settlement, the mediator might want to consider “time.” Yes, some litigants, especially those who are well heeled, see their time as more valuable than any potential judgment. Important people (or those who just think they are important) will view their personal time as a nearly priceless commodity. It is the mediator’s job to then juxtapose that amorphous commodity against any possible judgment. This will force the hardball player into balancing the alternatives – money vs. time.
Every time I hear an attorney’s bray, “We are drawing a line in the sand. We won’t [take/offer] a penny [less/more] than $ [fill in the blank].” I giggle to myself and then respond, “You had me worried for a moment. If you said you were drawing a line in marble, I’d be concerned. The best part about sand is that the line is easily erased and a new one can be drawn at another location.” It breaks the tension and usually gets a laugh.
Enticing a stubborn litigant to move from “no” to “yes” can be daunting. Unchanged positions will invariably cause frustration to the party that wants to play ball. It may lead to a predictable, “If that’s their final position, we are walking!” Passing that message on to the hardball player will either be met with a, “Let’em go” or a changed offer. If the latter happens, we’ve got a ballgame.
The mediator must be patient and continue to probe the reasons for a hardball player’s recalcitrance. Questioning the reasons for their position may very well bring to light some undetected or ignored risk that will cause the disputant to re-evaluate the case. The goal is to get the parties to play ball, even if it is hardball.
Ultimately, it’s the mediator’s job to let the hardball player know that it’s not necessary to hurl fastballs throughout the mediation. Sometimes a nuanced pitch with some strategy behind it can garner far greater rewards.
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