Movie mogul Sam Goldwyn is credited with the now famous quote “If you want to send a message, call Western Union.” Goldwyn, of course, was talking about movies, which he thought were intended to deliver entertainment, not political or social messages. Other producers disagree and many “message” movies have been produced. However, Goldwyn’s quote might be more applicable to dispute resolution. How many times have we heard “It’s not the money, it’s the principle” as an excuse for not settling a dispute? The retort to that excuse is “yes, but how much is that priniciple worth to you?” Everyone has their price. For the right price, you can presume the principle point was made and the message got through, even without an explicit acknowledgement.
This is not to say that dispute resolution is all about money. A friend of mine who has been a mediator for a long time recently told me he did not like mediating personal injury cases because all that it involved was asking one side to give a little more and the other side to take a little less. I disagree. There is much to talk about in personal injury cases besides money. Trial of a personal injury case involves determinations of relative fault and causation, as well as valuation of the injuries. Principles such as personal responsibility, social and business obligations, and economics (externalities) are frequently involved. So are insurance coverage and subrogation. A good mediator uses these talking points to move parties off of their predetermined dollar positions. Even if the parties cannot agree on these principles, they need to understand what they are facing if they don’t settle. If the parties are using the mediator merely to convey dollar amounts, they might as well use Western Union. If one side wants to send a message and fight for a principle, they need to raise it and discuss it. Then they can get back to the bottom line and find the dollar value of those principles.