“I’ll never settle with those people!,” snarled Charles (not his real name) as he slammed his briefcase down on the conference room table. “We’re here because the judge made us mediate. But we are not willing to settle with those people, ever.” Charles’ client nodded emphatically beside him.
“They fired my client for no reason. They have fought us at every turn in this litigation. Stupid stuff. They filed motions for sanctions and then put in a bar complaint against me!” Charles seethed. More nods from Charles’ client. “They’ve lost every time. But I know what kind of people they are, and that what they are going to offer is unreasonable. We are not going to accept it.”
As a mediator, I had my work cut out for me. Charles and his client were emotionally invested in not cooperating with the other party. “Has the other side made any offer to you yet?” I ventured. As the mediator, I always want to know where negotiations stand before we get started.
Charles threw out a number, and added, “It’s not even close. We’re not settling with them, anyway.”
Even Justified Anger Can Get in the Way of Settling a Case
In every litigation, emotions bubble under the surface. In some cases, those emotions boil out and can get in the way of a reasonable, rational settlement that is in the best interests of all the parties.
Charles and his client may have been fully in the right when it came to how the other side had behaved during the litigation. But now they needed to put their emotions aside so that they could make a good decision about whether and how to resolve the case.
If you find yourself in a situation like Charles’, where you are headed into mediation with opponents you truly dislike, here are some tips for decreasing the emotions enough to allow you to make a good decision about a settlement demand or offer.
Start with you.
Your client was steeped in the rocky relationship before the litigation ever started. Compared to your client, you are newer to the acrimony, and you have the advantage of having other cases that can help give you perspective. So start by working on your emotional reaction.
Focus on the conduct that caused the case.
Let’s say your emotional reaction is due to the party’s conduct during the litigation. As a professional, you need to objectively separate the conduct during the litigation from the conduct that is the subject of the litigation. While the jury might “see through the other side,” as I have heard many lawyers say, there is also the chance that the egregious behavior that has offended you so much will never see the light of day at trial because of motions in limine. And although it may be hard to imagine right now, it is also possible that, even if the jury learns all about the conduct, it will not respond the way you think it ought to.
By focusing on the conduct that caused the case, and not the conduct that has been aimed at your throughout the litigation, you can be more objective when you evaluate the value of the case.
Go back in time.
If you can mentally transport yourself back in time to the moment the client came to you with the case, you will be able to evaluate the case more objectively. What were the initial facts the client gave you? What was your first impression of the case? I have always found it helps to remember what I thought of the case when it first came in the door. I was at my most objective then. I had not agreed to take the case yet, which freed me up to see the problems and risks.
Remind yourself of your goal.
You are in the mediation and the case because you want the best result for your client. As litigators, we get caught up in the passion of the case, and tend to think that the best result would be a trial and public vindication. But not every trial results in the outcome, or the public vindication, that your client wants. In fact, the best result for your client might be a settlement that lets them leave behind the conflict and anger that has been generated before and during the litigation.
In Charles’ case, we spent some time talking about why he felt so strongly about not settling. I asked him to think about the case from a more objective standpoint, and to tell me some of the benefits he saw if the case settled. Armed with a new perspective, Charles reached a very satisfactory settlement with the other side that day.
Written by Lee Wallace