Blog by Phyllis G. Pollack
I have said this before and will say it again: talking to the other party does wonders. After mediating more than 2,000 cases, I am still at a loss to understand why parties in litigation are afraid to sit down with each other and discuss the issues directly. ( I know the lawyers do not like it as they are afraid of “losing control”.) Many disputes begin due to a lack of communication or a miscommunication and so can be just as easily resolved by a face to face conversation to clear up this misstep.
I revisit this topic because I just helped resolve a copyright infringement suit that settled mainly because both the lawyers themselves were quite receptive to sitting down and being candid with each other and more importantly, the actual parties wanted to speak directly with each other. The latter did so and resolved the dispute within minutes. HOORAH!
The mediation started out as most mediations in California. I spoke with one side first and then visited with the other party. After gaining an understanding of each side’s view of the matter, the parties started making demands. The plaintiff’s demand was way more than defendant was willing to pay because defendant believed it had an absolute defense to the alleged infringement. So, defendant wanted to play “tit for tat” by giving me an equally unreasonable response to take back to plaintiff.
Seeing that this matter was about to get off to a bad start and “go off the rails”, I invited counsel only to meet with me and both willingly agreed. As I sat and listened, they had a very candid down to earth conversation with each other. (It helped that they knew each other from prior cases and so had a good working relationship.) At the end, the defendant repeated his response to plaintiff’s demand at which point I advised that I had not yet conveyed it. But, by this time, counsel had seemingly moved beyond playing “tit for tat” but rather acknowledged, although not agreed with, each other’s position. Consequently, defendant’s response did not have the sting it would have had initially.
After counsel separated and spent a few moments discussing this “joint session” with their respective clients, plaintiff invited me into the room and provided a new demand which was much less than originally sought. The meeting of counsel had had an effect.
I took the new demand into the defendant’s room and after a few moments of conversation, the defendant asked if she could speak directly to the plaintiff. As plaintiff had asked me the same question earlier in the mediation, I answered that I believed so but needed to check.
A few moments later, the plaintiff and defendant met directly without me. I saw no need to be there. They knew each other as competitors for many years. As one might suspect, there was a lot of yelling and loud voices coming out of the room. While their respective counsel were concerned, I told them not to be. People need to vent and get their anger out and once they get what is bugging the *(&^%!! out of them off their respective chests , they calm down and get to the heart of the matter.
Sure enough, the door opened a few minutes later and the parties announced that they had settled the case and to draw up the settlement papers. Many minutes later, the parties walked out, all smiles and thanking me for helping them settle. (Indeed, while the attorneys were working on the draft settlement, the actual plaintiff and defendant were chatting away like they were the best of buddies or BFF!)
I have no doubt that if first the attorneys had not talked directly and candidly with each other and then the parties had not done the same, the matter would not have settled. Direct and candid communication does wonders. Parties in litigation or even in the most minor of disputes should do it more often.
… Just something to think about.
Update: In my May 3, 2019 blog, I discussed California Senate Bill 188 (SB 188) which defines discrimination based on race as “…including, but not limited to hair texture and protective hairstyles….” (SB 188). That bill has now passed both houses of the California Legislature and is on its way to the Governor for signature. Presumably, it will soon become law.
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