Are We There Yet? Can we pick the perfect time to mediate?
NOT ALL TIME IS THE SAME IN LITIGATION.
We’re smart. We know that not all time counts the same. The time we spend lounging on our couch is different than our time spent racing to catch a bus. And so it is in litigation. Some time is inconsequential. Other moments are life-changing.
WE PERCEIVE TIME DIFFERENTLY WHEN WE WANT TO.
Parties to a mediation can perceive the timing choice of a mediation date differently. One litigant thinks they are “sitting on a couch” aimlessly litigating what’s possible. The other, feels like she is late for her bus. She is only focused on what’s inevitably terrible for her if she doesn’t cap her litigation can of worms in the next two urgent minutes.
WE CAN’T PICK “WHEN” IF WE DON’T KNOW “WHY”.
How do we trust our hunch that it’s our right time to mediate? Does our opponent share our hunch? Here, an evergreen favorite maxim vividly illustrates our point about overcoming chronically divergent perspectives about roles: “When it comes to a bacon and eggs breakfast, the hen is involved. The pig, is committed”.
Mediation works best when both sides are that “committed” pig. When both sides realize they are trapped in the litigation process, they know “why” they are mediating. Mediation is so right, they’d invent it themselves, if it wasn’t already real. For invested parties, picking “when” is easy.
More typically, we think we are that, our-eggs-for-breakfast nonchalant hen. We’re okay with a litigation solution someday if we remember to care about it. In the meantime, we’re alright where we are. Timing mediating that “why” case, is what this article is about.
OUR CONFLICT IS MOVING TO A RESOLUTION. DO WE WANT IT?
There are decisive waypoints in litigation that tie our fate to the fight. They seize our attention and make us shift. We must confront them- in litigation we have no other choice. We call them motions to dismiss, or motions for summary judgment; motions to shape the pretrial discovery landscape and for sanctions when we tear it up; motions to disqualify expert witnesses, or even motions in limine to bar essential trial evidence. Whatever their names, their outcomes rob us of our attractive options. Each outcome changes our risk appetite.
FOUR-DIMENSIONAL CHESS.
Sometimes, we are that nonchalant hen for the blink of an eye. For only the briefest moment, “someday”, is an okay day for us to see our lawsuit’s end. Then, all of a sudden, and deliberately, we quit our nonchalance. We realize we are the invested, here-and-now-we’re-bacon, pig. No more procrastination. We start looking at our calendar for a mediation date. Why, and why now?
It's the savvy disputants that are that are nonchalant about mediation for the blink of an eye. They, do chess in their head. Very early, with the benefit of wise, experienced counsel, they play out their hypothetical motion to dismiss and summary judgment fight and to each, they ascribe real, not rosy, odds they’ll prevail. They are that committed to early mediation, because they trust the future they’ve soberly projected. They know what they know. To them, acting now, makes sense.
MULE KICKS TEACH THE REST OF US.
The rest of us are unaccustomed to legal fights and we learn as we go. We spend an inordinate amount of time as that nonchalant hen. “Someday”, is our favorite way to litigate. Our strategy is not mental chess. We learn experientially; by trying and failing. The “Kick of a mule” is our top teacher for most of us, and we get it, but too late. We think we are litigating lounging on our couch, but time passes, and we discover we’re really racing for our litigation bus. Painful experience, gives us our “why” answer.
SOME LITIGATION SPENDING IS ESSENTIAL. LOTS OF IT IS WASTEFUL.
In our dispute, we first spend wisely. We’re thinking straight. We invest impactful litigation dollars learning about our foe’s case or defending ours against attack. We spend wisely too, when our ambition is to kill a case early, or the opposite; show the other side we are serious, and they can’t dispatch us early and cheaply, because law is with us.
After that impactful spending, we’re at a tipping point, and at-and-after that tipping point, litigation dollars are some of the dumbest dollars we burn. We spend, but our case doesn’t get better for it. Now, that mule kicks us, and it’s a grim lesson. We realize we still have to spend our thousands of dollars, maybe hundreds of thousands, fortifying our case so we are watertight for trial. Spending with no real return for it; Now, we know “why” we want to mediate.
THERE IS NO EDUCATION FROM THE SECOND KICK OF A MULE; ONLY PAIN.
We have two choices; mediate now or press on to trial. The benefits of smart, timely mediation are obvious. We won’t waste time belaboring them. Instead, let’s examine the bewildering choice to press on.
A small fraction of cases can’t be mediated. Some turn on a hotly contested vital fact. Decide that fact, and one side or the other wins outright. In these cases, plaintiff and defendant are “all in” about their version of the truth. These cases beg litigants for a certain peace with what’s to come. These cases go to trial if litigants are determined enough.
In another species of cases, there’s been settlement talks, but the demands, or offers, don’t respect the uncontested case facts and governing law. Both sides insist they are bargaining in good faith. Both sides blame each other for the impasse. Regardless, there is an unbridgeable chasm between “want” and reality. If nothing about settlement negotiations changes, this collection of cases gets tried.
Litigants have the moment to resolve these cases, but they let the moment pass. Instead, paradoxically, they spend more litigation money for the chance to win less, sometimes much less, or lose more, sometimes much more, when a jury renders its verdict.
These cases stick around for the “Second kick of a mule”. Mark Twain was right. There is no education in that.
WE WASTE MONEY AND WE AREN’T ANY SAFER.
Here’s the bitter truth we ponder. We’ve spent our fortune making our case irresistible. Our lawsuit has monopolized our attention and our calendar. We are bruised, and frustrated. What’s our prize for it? It’s not certainty.
With our fortune, and months of devotion, we built our beautiful litigation lifeboat on shore. It’s a mix of what we want, what our opponent fought us about and lost, and what the court grants us. Whatever it is, it’s not everything we need, and it’s not what we hoped it would be at the outset of things.
So far, we’ve only seen our litigation lifeboat dry. Now, our trial storm is upon us, and for the first and last time, we’re in our litigation lifeboat, and we’re launching it. Is it sturdy enough for our storm we stayed for? Do we float? Sink? Try sleeping when the answer to that question is all you care about.
Trial? Trial is a gale, and throughout it, we grip our lifeboat. Fingers-crossed, we get to listen to strangers tell us we win, or we lose. Nobody in human history has ever said about trial, “That was fun, let’s do that again”.
NOW, PICK YOUR TIME.
Okay, so how do we know it’s the best time to mediate? Remember our nonchalant hen and committed pig. Look for that goldilocks moment when both sides can still credibly argue they win, and there’s urgency to settle because our menu of attractive possibilities is about to shrink; hypothetical outcomes we can threaten, or we fear, are about to become real- the hangman’s noose has our attention.
3Chairs CAN HELP YOU
Much about litigation is economically inefficient. The marginal utility of our early litigation spending is tremendous. After that, not so much. Our later spending is indispensable if trial is our destination, but our extravagant late-in-our-case spending is not impactful. Our mediation expense is a comparatively paltry sum of money well spent if we know why we pick our mediation date and we’re ready for it.
We look forward to answering your questions and helping you with your full or half-day mediation. Contact us:
3Chairs Mediation Group, Inc.
(855) 3Chairs | (855) 324-2477