RSS Feed
Tags Index

Law Rules

How we resolve our disputes

Entries in fear (2)

Wednesday
Jun222016

Who wants to go first? 

In mediation, the participants often spend much time trying to get each other to be the first to make a settlement offer. It is understandable that neither wants to be the first because they would both like to see how reasonable or unreasonable the other side is going to be. Then they can respond in kind. Fortunately for the mediator, the parties frequently have had settlement discussions before coming to mediation, and those discussions can help frame the initial offers in mediation. However, if that has not happened, it can be difficult convincing one of the parties to make the first move. 

Likewise, it can be difficult to get the parties to agree to enter into mediation at all. Many people, especially attorneys, see an adversary’s request for mediation as a sign of weakness. If they were prepared for trial and convinced they would win, why would they want to talk about settlement? Where I practice law and have litigated the most cases (Milwaukee County), the standard civil pretrial order requires mediation. It allows the parties to select any mediator they want, but if they cannot agree on one, the court names someone by default. In any event, neither party has to request mediation and appear to be unprepared for trial or less than certain of victory.

Unfortunately, this is not the practice in all counties in Wisconsin. Recently, I attended a “view from the bench” seminar in which trial judges gave tips to trial lawyers. One of the judges said he never ordered mediation unless one of the parties requested it. I believe the judge is missing an opportunity to be of service to the attorneys and their clients. The Judge can avoid the parties’ fear of appearing weak and give the attorneys cover by saying “the Judge made me do it.” The opportunity to settle well in advance of trial also avoids the spectre of one of the parties folding on the courthouse steps immediately before trial, thereby giving away the store or leaving money on the table, and wasting scarce court time. 

So, instead of asking the attorneys if they want mediation, a judge’s default pretrial order should require mediation. The Judge should strike the order for mediation only if he finds some reason not to order it. For example, if the case is one of first impression or if a precedent needs to be set regarding a new statute or constitutional provision, it may not be appropriate for mediation. If the attorneys have tried and settled many similar cases against each other, they may be familiar enough with each other and the process so they do not need a mediator to help guide them through it. Otherwise, the Judge would be doing a favor for the parties, their attorneys and the court system by ordering mediation. 

Monday
Apr132015

All that glitters . . . 

This past weekend, I went to see the movie Woman in Gold. It is based on the true story of a holocaust survivor, Maria Altmann, who convinced a young attorney to help her recover some paintings that belonged to her aunt and uncle before WWII, but were taken by the Nazis in Austria. She tried to get the Austrian government to voluntarily return them to her, but they refused. So she sued the Republic of Austria in the United States. Of course, Austria claimed sovereign immunity. The U.S. District Court rejected Austria’s motion to dismiss, and the Court of Appeals affirmed. The U.S. Supreme Court agreed to review it, and again ruled against Austria. That meant the case would return to the District Court for a trial on the merits. At that point, Mrs. Altmann offered to submit to mediation, suggesting that she might agree to allow one or more of the paintings to remain in Austria on public display, in exchange for a certain sum of money. The Austrians refused to negotiate or submit to mediation. However, they did agree to submit to binding arbitration in Austria. Surprisingly, they lost again, even on their home turf. Finally, if the movie got it right, the Austrians suggested a negotiated settlement. Too late. Mrs. Altmann took the paintings back to the United States, where there are now on display in New York City.

As a mediator, I was pleased to see litigation, mediation and arbitration depicted so accurately. I frequently encounter people who do not know the difference. Litigation and arbitration are win-lose propositions. Mediation can lead to a win-win solution. The Austrians could have kept at least some of the paintings in Austria and saved face, as well as creating some good public relations. Instead, they chose litigation and then arbitration, and lost everything, including some good will and (for them) a bad precedent.

It is not unusual for me to hear people say “why should I mediate when I know I’m going to win in court?” They think agreeing to mediation is a sign of weakness and shows that they have some fear they might lose. My job is to convince people that there is nothing to fear in trying mediation. Normally, nothing that is said or done in mediation is admissable evidence if the case does not settle and goes to trial. Many times, the parties find they have interests that cannot be satisfied by a court, even if they win. Outcomes in mediation are not limited to what a court could do. It can be a very creative process, limited only by the parties’ willingness to search for a win-win solution and to look beyond the immediate legal battle. The things I enjoy most about being a mediator are helping people to put their legal battles behind them expeditiously and finding solutions that both (or all) parties can live with. Saving time and money can often be a pleasant by-product.