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Mediation Vignette: Last Hard Choice

You leave 20 minutes late. You turn left instead of right. Choices are made. Paths taken and forces come together, with consequence.

And if you freeze frame this picture of Jason and his wife, both in tears, in this mediation and run it all backwards, you would come to all those forks and all the choices and see how the forces collided.

The cue ball strikes the eight ball. The eight ball hits a cluster of others, sending them careening. They go where they go. They hit what they hit. The cell turns bad in the early spring and the lump is noticed just after Christmas. Choices, benign when made, can lead to a fork; a fork with only bad choices.

Not a Hobson’s Choice of selecting the horse nearest the livery stable’s door or none at all, but a Sophie’s Choice.

Running Jason’s film backwards, he made the first choice five years ago; to have lunch out at Bistro 110 instead of eating at his desk. He ran into a college friend he had not seen for years and they agreed to have dinner. The couples met and Jason’s friend described his latest business venture, a string of t-shirt printing and college merchandise shops that he planned to franchise. He wanted Jason to join him. With a little bit of capital and Jason’s accounting background and banking contacts, they should be able to see a franchise in the majority of college towns in the Midwest. And there are more than you might think. Jason’s friend already had fifteen stores, all selling merchandise with licensed college logos. Jason’s wife was against it. They were in their mid-fifties, children on their own and they were on their way to accumulating everything they needed. Why risk all that? You are not the one in the office everyday, dealing with the details, clearing the paths for everyone else to make fortunes. If it’s really what you want, what you really need to do, do it, she said. Fast forward three years. Nine franchises had been sold but problems were appearing. The home office support wasn’t as promised, the licensing agreements were not as exclusive as represented; most of the franchisees were upset and they had joined together in a lawsuit against Jason, his friend, and their company.

The lawsuit had been pending over a year and had taken its toll on Jason and his wife. The business had failed and the litigation had been very expensive. I greeted Jason and his wife that morning when they arrived, their lawyers not yet there. Jason’s lawyer had called me about a month earlier and told me Jason was suffering from a late stage liver cancer. He was expected to live 6 months to a year. The trial date was in 4 months. All the participants in the mediation were aware of Jason’s condition; he had been deposed by the lawyer for the nine plaintiffs earlier in the month. I walked Jason and his wife down the hall to the conference room and the gravity of his condition was obvious as he tried to maneuver the hallway with the small aluminum walker. Jason’s wife was angry. She was angry at Jason’s friend, at the plaintiffs, at the legal system and at me because I was part of it. Part of her was even angry at Jason for getting her, them, into all of this; for getting sick. I shuttled all day between the three rooms, talking with Jason’s friend and his lawyers, the plaintiffs and with Jason and his wife. It was more than just a trial because if the case did not settle, it would consume most of the days Jason had left. His doctors had told him the obvious; the stress will only make things worse. Get the case settled. Spend the time with your wife and family. Forget about the money. But Jason couldn’t forget about all the money because his wife would soon be on her own and would need all that they had.

But toward the end of the session, Jason had offered all the money he could raise without selling his house which he wanted to protect for his wife. The gap had been narrowed from millions of dollars to a difference which should have been manageable. Although Jason had exhausted his ability to pay, it was clear that Jason’s friend had the resources needed to bridge the gap, but he refused. It was a matter of principle, he said. I did nothing wrong. The plaintiffs are just bad business men. My own stores are doing well. But we can’t settle this case without this extra amount. The plaintiffs won’t budge and Jason has nothing left, said the mediator, feeling himself slip out of neutral and into gear. You surely don’t want to see your friend — whom you got into this mess — to spend the brief time he has left coping with this litigation. No, of course not, he said, but I didn’t create this problem. The plaintiffs had more contact with Jason than with me. Jason was supposed to be the numbers guy. I went back to the plaintiffs and told them I couldn’t raise another dollar. You know Jason’s situation, I said, and he has given all he can give. Our lawyers told us we shouldn’t settle with just one of them, said one of the plaintiffs. Besides, said another, three of us lost our homes over this and it’s too late for us to start over. All of us have had lives turned upside down. And all that was true. Then, another of the plaintiffs said something else; something that would frame Jason’s last hard choice. In his deposition, Jason had testified that he had two life insurance policies on his life with his wife as the beneficiary. One of the policies was for an amount substantively equal to the money needed to settle the case. If he assigns that one insurance policy to us, said the plaintiffs, we’ll settle.

I reported this offer first to Jason’s friend, wondering if it would break loose his refusal to offer more of the money he clearly had. It did not. The choice was now all Jason’s . Spend the rest of the short time he had fighting the lawsuit and in trial or forfeit a substantial amount which his wife would need after his death. Her anger was complete. The unfairness of the choice too perfect. She turned her back and stared out the window, the people below worrying perhaps about the traffic home on a Tuesday afternoon. She just shook her head back and forth. And Jason sort of tilted his head and something that almost looked like a smile came across his face as he realized he needed to make one more choice.

Names and details in these vignettes have been changed or altered to protect
and preserve confidentiality and privilege.


John R. Van Winkle

John R Van Winkle is a full-time mediator from Indianapolis Indiana. He is a former Chair of the American Bar Association’s Section of Dispute Resolution and the author of “Mediation; A Path Back for the Lost Lawyer” MORE >

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