Everyone writes about their most difficult mediation case and what they learned from it. No one seems to write about the easy ones. But I think there is something to learn even from those easy cases. Yesterday, a friend told me about a case involving a mistake during construction of a government building that caused about $300,000 damage to the building. The state sued to recover the cost of repairing the damage, but it really liked the contractor and wanted to continue doing business with them. The contractor, of course, wanted to keep the state’s business. Neither one wanted to give away the store, but neither did they want to go to trial. An easy one, right? Find out how far apart the parties previous offers are, caucus and try to find their bottom lines. The difference couldn’t be worth more than the value of future business and services between the parties. Naturally, the case settled fairly quickly in mediation.
So what can we learn from this? In most cases, the parties are not quite so obviously motivated to settle. But that is precisely the point. Their motivation to settle might not be obvious, but their motivation not to settle is often painfully obvious. One side might be so sure of its position that it wants to punish and make an example of the other party. The other side might be equally sure of its position and figures it has nothing to lose by going to trial. Regardless of what their motivation is, the first step to settling is finding out what is motivating them. This requires getting them to talk. If they won’t talk to each other, maybe they will talk separately and privately to the mediator. What makes them so sure of their positions? Have they considered all costs and risks? Are their assumptions realistic? What are their alternatives?
In criminal cases, defense attorneys often argue that their client cannot be found guilty because there is no proof of motive. Why would the defendant do what he is accused of doing? The prosecution usually answers that motive is not an element of the crime and they do not have to prove one. Nonetheless, if they know the motive, they certainly will try to prove it because it makes it easier to get a conviction. Likewise, in a civil case, motive is not usually an element of the cause of action, but knowing a party’s motive can make it much easier to prove your case. Or to negotiate a settlement. It matters not whether the motives favor settlement. What matters is knowing each other’s motivation. Only then can you begin to craft a settlement that satisfies those motives. In my friend’s “easy” mediation, the most important motive for each party was preserving the relationship. If the mediator had focused only on money, the mediation would have been much more difficult.