3Chairs Mediation Group

3chairsmediation.com/chronicle/mediating-the-1-billion-case

We were recently engaged to mediate an 850-plaintiff, $1 billion mass tort case. The case concerned sexual and physical assault allegations harkening back years. Mega litigation settles when mediators strip mega disputes to their outcome-affecting essentials. Culling issues is vital if settlement is the goal. Talented mediators focus on trees, not whole forests.

Mediating the $1 Billion Case. — 3Chairs Mediation Group, Inc. We were recently engaged to mediate an 850-plaintiff, $1 billion mass tort case. The case concerned sexual and physical assault allegations harkening back years. Mega litigation settles when mediators strip mega disputes to their outcome-affecting essentials. Culling issues is vital if settlement is

Are We There Yet? Can We Pick the Perfect Time to Mediate?

We’re smart. We know that not all time is the same. The time we spend sitting on our couch is different than the time we spend rushing to catch a bus.

Parties to a mediation can perceive the timing choice of mediation differently. One thinks they are sitting on a couch pondering what’s possible. The other, is late for her bus, and focused on what is inevitably bad if she doesn’t leave her house in the next two minutes.

Here, a favorite maxim vividly illustrates our point about perspective: “When it comes to bacon and eggs, the hen is involved. The pig is invested”. How do trust our hunch that it’s time to mediate? Mediation works best when both sides are that pig.

When both sides know they are that pig, mediation is so right we’d invent it ourselves, if it wasn’t already real. More about that in a future article.

More typically, we think we are that hen. We’re okay with a solution someday if we remember to care about it. In the meantime, we’re all right where we are. Mediating that case, is what this article is about.

Sometimes, we are that involved hen for the blink of an eye, and we shift to that invested pig even before we agree on a mediation date. How?

There are necessary waypoints in litigation that invest us in the fight. We must confront them- we have no 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 take attractive possibilities away from us. Each changes our risk appetite.

It's savvy disputants that are that hen for the blink of an eye. They, do chess in their head. Early, they play out the hypothetical motion to dismiss and summary judgment fight and to each, they ascribe real, not rosy, odds they’ll succeed. They are that pig that mediates early because they trust the future they’ve projected.

The rest of us are unaccustomed to legal fights and we learn as we go. We spend an inordinate sum of time as that hen. Our strategy is not mental chess. We learn experientially; by trying and failing. We think we are lounging on our couch. As time passes, we learn we’re really, late for our bus.

Experience is our top teacher for most of us. Gaining it in our dispute, we first spend wisely. 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, we’re at a tipping point, and litigation dollars are some of the dumbest dollars we sacrifice. Our case doesn’t get better. Instead, we spend our thousands of dollars, maybe hundreds of thousands, wardrobing our case, so it’s sharply dressed for trial. If we make it to trial, we’ve spent a fortune making our case irresistible. What’s our prize? It’s not certainty. We ride a rollercoaster, then we 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”.

Okay, so how do we know it’s the best time to mediate? If we remember that hen and pig, we look for that goldilocks moment when both sides can still credibly argue they win and there’s urgency to settle because the menu of attractive possibilities is about to shrink; hypothetical outcomes we can threaten, or fear, are about to become real- the hangman’s noose has our attention.

Much about litigation is economically inefficient. 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.

Disarmament. "Tell Me About Your Case".

Mediation is a conflict solution strategy. Talking, is our tactic to achieve our goal. When we mediate, there are ways to talk that work.

We learned on the playground to talk at, our opponent, because our obstacle, is, our opponent. Our formative life experience taught us we can’t stop bombarding them, until we’ve stripped the bark off them.

That battering ram style, or it’s cousin, the filibuster, seldom succeed when we are negotiating. They thwart all solutions to our conflict because they are infuriating. Want to see it in the wild? All of us laugh at the timeless gag that people who don’t speak our language will surely understand us, if, we yell at them.

If mediation is our strategy, it’s no good to preach. We discover resolution listening to the other side. “Tell me about your case” is the most genuinely disarming thing we can say in a dispute, and, if we mean it, it generates powerful momentum for us to settle.

Yes, we know our case. If we are set, there is no epiphany about our own case in a day-long mediation. Okay, so how do cases settle, then? By learning new or different things about the other side’s case, or, by learning, after listening for as long as it takes, that there’s nothing new to know, and our view of our opponent’s case is what we thought it was. Either is okay. It’s what we do next with this information that’s meaningful.

Credibility is our dividend if we listen respectfully. If afterwards, we cannot embrace the other side’s view of the dispute, we can cash in our credibility and our opponent is receptive to hearing us explain that we are not inflexible. Done well, our opponent knows why we stand where we are, because they have seen us patiently consider every word they utter.

We can grow to trust people we disagree with. “Tell me about your case” builds confidence in our opponent that our settlement offers are rational, not ad hoc. We may be fighting about terms, but we are doing it in good faith.

Listening is powerful in three ways. When we listen, we learn. When we listen, our opponent knows we respect their arguments. They know too, that we respect them. This human-to-human goodwill is vital in negotiation.