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An Untypical Mediation

After well over three hundred mediations, it becomes difficult for me, as it is for other mediators, to recall with any detail a particular mediation.

Every mediator, however, immediately following the proceeding, reacts in some manner to the outcome, whether it ends in settlement or impasse, of every mediation over which he or she presides. Even those that settle do not always leave a good feeling in the mediator, since the mediator judges himself or herself according to self-imposed yardsticks that do not necessarily hang on the end result.

Recently, I had a mediation that left me with a uniquely pleasant reaction, and it was not merely because of my actions in helping the parties reach a settlement. Indeed, in this case, the parties ruled the roost.

One of the parties was a contractor, the other a subcontractor. The latter believed he was owed a large sum of money for a series of jobs, the former that he had greatly overpaid the latter in some of those jobs, resulting in a net amount owed him.

Neither party, as it turned out (facts not shared with each other), was properly licensed to do all the work he had done. This eventually had a bearing on the outcome of the case.

The process was fairly routine as to format. Opening statements by the mediator and each attorney, following which we met separately. Almost immediately, I noted the two men appeared cordial to each. Such behavior, while not unique, is uncommon in a litigated dispute where, especially close to trial, the parties have dug their emotional trenches in preparation for the blowout in court. I made a mental note of their apparent relationship.

When I met separately with each of them and his counsel, I broached the subject carefully, expecting them to reassure me that their enthusiasm to go forward was real and to urge me to press the other side with urgency. I first asked each about their past relationship, considering they had worked together contractually in more than eight or ten projects, and I explored the possibility of some social contact between them. There was little of such personal contact, but clearly the two had maintained a good working relationship, and hints of true cordiality were strong. Money may have been the most important issue, ultimately, but it was not the only one.

The value of the relationship had to be weighed against the fact that plaintiff was no longer doing contracted work, and defendant, his contracting company now defunct, was employed by a contractor. I had to be careful not to exaggerate the significance of their past association.

After a number of meetings with the parties, plaintiff’s claim–primarily because he was very concerned, not only about penalties for working without a license, but also because of the possibility of nonrecovery in a civil action by reason of a Florida Statute–was down to $6000, while defendant had come up to $2000.

With $4000 separating the parties, I began to concentrate on the cost of further action. They were on the trial schedule at that time, and it was likely they would go to trial the following week. Interestingly, each party, while admitting there was some interest in maintaining the relationship or at least remaining cordial, spoke repeatedly about “principle.” This did not come from the attorneys, and I believed the parties believed what they were saying. In fact, both attorneys concurred that the cost of going forward, even absent an appeal, would cost each party about $2500.

Plaintiff’s counsel finally stated that his last offer was $4000, and, if not acceptable, asked that the mediation be impassed. In addition, he suggested that defendant meet with plaintiff, alone, without the mediator or attorneys. Something obviously was going on that plaintiff did not wish the mediator, defendant’s attorney, and perhaps even his own attorney to know.

When I went back to defendant, he was adamant about his $2000 offer. The attorneys and I waited in another room, while the parties talked in the meeting room. The attorneys were so pessimistic they discussed trial strategy, and there were facetious comments about “blood on the floor” where the parties were meeting. When fifteen minutes had passed, I had a good feeling that the contractors were reaching a resolution. Finally, after another twenty minutes, the parties came out and informed us that they had reached an agreement to settle for the amount of $2000. I never knew what went on in that room, and I wonder if their attorneys did.

This mediation was one of those rare occasions when I can say a satisfactory conclusion was reached largely by reason of the process. The parties had stalemated, they, not their attorneys, appeared to be in control, and, had I not pressed them on the cost of trying the case and therefore the high cost of the “principles” they espoused, the case would not have concluded. While I had emphasized to them that a good settlement agreement usually left both sides a little unhappy, by reason of the various intangibles, both sides appeared very happy with the agreement and thanked me personally for my help.

Fate often plays a part in the outcome of a mediation. I should have had a good feeling, when I pulled into the parking space in front of the attorney’s office and discovered a quarter lying at the base of the parking meter.


Edward P. Ahrens

Ed Ahrens has been a member of the Florida Bar for over 43 years. He is a certified state and federal court mediator in Tampa, Florida. He is also a freelance writer and former president of National Writers Association, South Florida Chapter. He is the author of the popular book,… MORE >

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