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Mediation Vignette: Moths and Trial Rage

This is another in a series of vignettes, culled from mediations conducted by the author. In this vignette a very stubborn litigant was going against his own lawyer’s advice to settle.

I can’t find the reference, but the quote is something like this; “Moth, I can’t change you….but I can turn out the light.”

Robert is in the other room and he has already turned down several offers that would give him what he said he wanted when we started this mediation seven hours ago. Now, he knows that I am losing patience and he doesn’t care. He is going to have his trial if he gets his way; he won’t if I get mine. Don’t tell me that it’s his call: that he has a right to have his dispute heard by a jury of his peers. He just wants, as he says almost spitting, “to get the fat sob in the other room on the witness stand.” So don’t talk to me about the nuance between facilitative and evaluative mediation and don’t worry that I might have crossed over the line. I did that several hours ago; obliterated the line; started by going to the hallway outside the conference room and taking a framed saying from the wall, and putting it on the table in front of him. It was an old curse. It said; “May you have a law suit in which you know you are right.” Didn’t faze him. This is a matter of principle, he said. That man cheated me out of my life’s work. It’s a shareholder dispute I said; it’s not exactly Brown v. Board of Education. Not an abuse case, I pointed out; not a civil rights matter, no death of a child involved here, I said. This company was my child, he said, I started it and put my whole life into it. Robert was just plain mad and he wasn’t going to deprive himself of the opportunity of seeing this matter in front of six people in his county, most of whom he insisted he would know.

I joined with Robert’s attorney as he told Robert horror stories about litigation; about being careful what you wish for. His attorney told him about the comparative fault negligence case in which a jury had decided that his client, the plaintiff who was sitting in a car struck in the rear by a truck that ran a red light, was 25% at fault. His attorney asked the foreman of the jury after the trial why the jury had found any fault against his client who clearly did nothing wrong. He was told; “The judge instructed us that we had to assess fault against everyone involved in the accident.” The story had no effect, none. Robert’s jury would understand his case. I told him about the client for whom I got the best trial result I had ever obtained; all the relief we asked for and more damages than I black boarded. The verdict was upheld on appeal and even made some law. Lawyers would call me for the briefs. Great trial result. But I also told him that I saw that same client three years later at a social function and when I went up talk to him, he sort of brushed me aside and said; “I’m sorry, John, but seeing you reminds of the worst period of my life and I just don’t want to talk to you.” There you go. But none of the stories changed his mind. Robert did not want any settlement, not even one that got him much more than his attorney thought he would ever get at trial.

I eventually concluded that there was no point in going any further. Robert knew his options and had a right to his decision and it was surely made knowingly. There is a benefit, obviously, of mediation for cases that do not settle. The parties are fully and completely advised of all settlement options and the decision to go to trial is not the result of just being on the litigation train, with only a trial at the end. So I felt that the session had been productive.

Robert’s attorney had to attend to a brief call and there was a lull before we would receive the other side’s formal last proposal so I suggested to Robert that we walk across the Circle and get a cup of coffee. I learned on the walk that he grown up on a farm, not too far from I did, in north central Indiana. We chatted about this and that and even selected the all-time best high school basketball team from that area and decided that it would beat any five from any other region of the state. We also lamented the loss of one-class high school sports, the silly school consolidation efforts of the early 60’s and the evil bank consolidations, all of which, we agreed, contributed to the loss of the last vestiges of local small town pride. We were getting ready to start on Wal-Mart when a car in front of us suddenly speeded up, endangering himself and others, simply because, it appeared, that he did not want another car to his left to be able to cut over and get in front of him. I mentioned to Robert that the incident reminded me of one that happened this summer. I was driving home from Michigan with my nephew and he had about gotten us both killed because he speeded up and cut off another car trying to cut in front of us. After panic braking and obscene gestures were exchanged, I asked my nephew why in the world he would risk getting us hurt, or killed over something like that. He said; “I just don’t want people who act like that driver to be able to get away with it.”

Robert and I got back to the office and I gave him a copy of the offer that the other party had made and which they indicated they would keep open for two days. Robert told them it wasn’t necessary to keep it open; that he would tell them now that he declined it. I asked him to at least take it home with him and I walked him to the elevator and wished him well as he left to drive home.

About a week later Robert and his attorney called. Robert said he wanted me to tell the other party that he would accept their last offer if it was still available. I told him that I spoken with the other side, that they had extended their offer and that I would inform them and the Court that the matter had been settled. I didn’t ask Robert what changed his mind about settlement, but he volunteered this;

“It was your nephew.” he said, “I was driving my granddaughter to school yesterday and realized how strong my urge was to take a risk to keep a pick-up from getting ahead of me.”

Names and details have been modified when necessary to preserve confidentiality.


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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