“There are many reasons why it can be hard to settle a case, or why the case seems like it's unresolvable. But in fact, it really is resolvable.” In this episode, Jean Lawler–commercial + insurance mediator and arbitrator–draws from her experience as a mediator to discuss ways lawyers can help the mediation process along when a case seems unresolvable. Episode highlights include:
To connect with Jean Lawler, follow her on LinkedIn or find her at LawlerADR.com
To read the full episode transcript please see the Podcast Website.
“There are many reasons why it can be hard to settle a case, or why the case seems like it's unresolvable. But in fact, it really is resolvable.” In this episode, Jean Lawler–commercial + insurance mediator and arbitrator–draws from her experience as a mediator to discuss ways lawyers can help the mediation process along when a case seems unresolvable. Episode highlights include:
To connect with Jean Lawler, follow her on LinkedIn or find her at LawlerADR.com
To read the full episode transcript please see the Podcast Website.
[intro music]
JEAN LAWLER:
Hello, and Good Day. I’m Jean Lawler, I’m host of the ROADS TO Resolution ~Closure and ~Certainty Podcast. It's so nice to be here with you today. As a mediator, I am honored to be invited into other peoples’ lives. Lives–that like all of our lives–are shaped by the many roads that we travel, roads that have brought us to our “today”, and roads that hold the promises of the future for us.
Today, I would like to talk about: Resolving the unresolvable. Getting hard cases settled. Yeah, that can be tough, but just think of the quote from A League of Their Own, when Tom Hanks' character is talking about baseball, “It's supposed to be hard. If it wasn’t hard, everyone would do it. The hard is what makes it great.” That applies to getting cases settled for your clients as well, or as the mediator, getting cases settled–helping parties resolve their cases.
It's “the hard” that can make it great. So that said, there are many reasons why it can be hard to settle a case, or why the case seems like it's unresolvable. But in fact, it really is resolvable. Most cases settle. It's a very high percentage, it’s probably 90-some percent cases (I know it’s 90-some percent cases) out there of civil litigation…They end up settling before trial. So if you’re at a point where you can settle a case, then great, let’s get it resolved.
So first of all, of course, is identifying why it seems like this case is being so hard to settle. Why is it seemingly unresolvable? Because only if you understand the dynamics of what's going on, can you get to the core of it, to then move beyond it, or some people might say “an impasse”. I would just like to look at it as the road, the process–if you will. Every case getting settled is going to have some hiccup along the way. Nothing is easy.
And so let's talk about ways that you might help the process along so that the unresolvable case can be resolved. One thing, and I’ve talked about this before at times, you know, using tools that are in the toolbox, so to speak. Brackets, mediator’s proposals, and the like, but I wouldn’t rely on that because what I’m really talking about is going deeper, deeper into the “why” the case seems unresolvable. And I think that there you really need to get to what is the interest of your client here. Do they want this case resolved? What do they want for their life? Do they just want this person out of their lives? And I've used that phrase at times when I've been talking to different parties. “Look, if you resolve this case, then you can wake up tomorrow and…just feeling that load off of your shoulders, your load has been lightened. You can get on with your life, and if you don’t ever want to see this person, or use this company’s products–or whatever it is–again in your life, you don’t have to.”
If it's your business, you can get on with the business of your business. Just freedom–the freedom that comes with resolving cases. And I think that’s really important for the clients, the parties to understand that they are in a mediation that gives them control over resolving their dispute, and ultimately of course, it's up to the client to decide. It's up to the lawyers to help facilitate and achieve what the client’s goals are. And of course, the role of the mediator is to help facilitate the resolution between the parties based on, of course, what the parties and their lawyers are telling you and what it is that they want to have happen.
There are times when it's clear that more information needs to be had, where there’s some key fact that if that can be clarified, then the glitch will be over with and we can move forward. Maybe there’s anger and emotion just running rampant, and that needs to be tamped down and be controlled. So buying time is also an option. Maybe today is not the day that this case should settle, maybe it's just the start. Mediation is a process, not an event. Don’t forget that, because mediations–if they don’t settle that day it does not mean they are a failure. It just means they’re putting you on the road to eventual resolution, or trial, or arbitration if that’s the end game for that particular matter. Whatever it is that can get you moving down that road is a help.
So whether, by buying time, whether we reconvene at a later date, maybe a week or two down the road while the parties go figure some things out or get some other information, that has helped and then we get back together again. And there we go. We’re off and running and the case does resolve. And in those situations, I know what I’d do, and I’m sure most mediators would. If someone has reserved a full-day mediation, and they just need to call it after a half day, then I save the time for them, for example, so they can reconvene and finish using their time, so there’s no extra charge. And I know people are very conscious of cost. There’s no extra charge to at least use the time for which they had booked me originally. Maybe not all mediators do that, but I’m willing to do that, certainly.
Maybe the lawyers need to talk to the mediator outside the presence of their client. And that is something that is so easily done. I will often bring the two parties’ lawyers, the two lawyers or three lawyers–however many lawyers there are–together to talk privately, without their clients. And I will say to their clients, “Do you mind if I just borrow your lawyer for a few moments? I’d like to just talk to the lawyers, and so you just stay here.”...And I’m thinking Zoom for the moment or online… “You just stay here and your lawyer will be right back to you.” And they're very happy, and it's like I'm asking permission of the client to take their lawyer, and no one has ever said “No.” And the lawyer is happy to do that.
So whether it's separately with one lawyer, individually. Whether it’s separately with several of them, oftentimes there can be different kinds of conversations. Sometimes even more candid than they would be if the client was there, but not in a negative way, but just a way that would be a different kind of conversation.
Take a break. Go take a walk, maybe, if there’s anger going. Let’s break for lunch. Let’s come back on in half an hour, an hour, whatever it is. If there’s a lot of anger and that’s stopping the process, then I will tell people, “Just vent,” and I know I've said this before in different scenarios. “Okay, you’ve got five minutes, so vent.” I won’t say anything. I don't argue with them, just get their feelings out. And then now let’s refocus on why we’re here today and what it will take to settle the case. Sometimes just a heart-to-heart is what a party needs.
I’ve had, for example, a sexual harrassment type of case, anything where it’s very very personal…The parties involved, they need to also picture their lives going forward and resolving this. What will their life look like if they don't resolve this? And is that what they want? And there’s no one right way. But speaking humanely and person-to-person with the party is generally a big help. And if at the end of the day or at the end of the mediation session, the case has not been able to be resolved, follow-up telephone calls with the mediator–oftentimes at no charge–usually that can do it. Or just a short back-together again, that can maybe do it. I know certainly having further calls with the mediator can help, and the mediator’s more than happy to take the time to make the calls to try to do the “telephone diplomacy” as I call it.
So there’s all sorts of ways to take the case to the next level, to resolve what appears to be unresolvable. You just have to get over that hump, and just think: Tom Hanks, “hard is what makes it great”. And everybody can’t do “the hard”, everybody can’t do what you’re doing to help your client as a lawyer. Everybody can't do what you’re doing as a mediator to help the parties and the lawyers. So, think outside the box, and that case will probably settle eventually.
Thank you so much for joining me today. Again, ROADS TO Resolution ~Closure and ~Certainty. You can follow my podcast. You can follow me on YouTube. Follow me on LinkedIn, and my website is LawlerADR.com. Thanks so much. Bye bye.
[outro music]