By: Joel Reck
Of course, the facts and the law matter in every mediation. But how much do they really matter? Although every mediation is unique, I am increasingly struck by how little the facts and the law in a particular case drive a settlement of the dispute.
Lawyer mediators have a natural and appropriate need to understand each particular case in as much detail as possible—both as to the facts and the law. In advance of the actual mediation, I often read one or more of the cases cited in briefs or in mediation memos in order to understand better the legal basis for a party’s position. On occasion, a cited case isn’t actually helpful to that party’s position! But I simply want to know as much as possible about the relevant facts and law and to understand as much as possible about the legal strengths and weaknesses of each party’s position.
So, if I am so concerned about my understanding of the facts and the law before the commencement of a mediation, am I inconsistent in asserting that the law and the facts aren’t truly vital to achieving a settlement of the case? Maybe, but I don’t think so.
Obviously, the mediator should prepare before every mediation and understand the basic facts and the law. The lawyers and their clients are generally discerning of a mediator’s knowledge, experience and preparation. The mediator’s credibility in the eyes of the parties is important in accomplishing a successful outcome and is certainly enhanced when the parties develop respect for the mediator’s understanding of their case.
But as part of my usual opening statement, I typically state the obvious--that I will not understand the case, even at the end of the mediation, as well as the parties and their counsel, who have been living with the dispute often for several years. I often go further and state that the facts and even the law of the case won’t necessarily be determinative of whether we can settle the case, but rather the settlement is in the hands of the parties (not the court) and is a function of how much they are each willing to compromise to achieve a settlement. Whatever the facts and the law might be, what matters most in a mediation is what the parties can each accept as a settlement and whether they determine that such a settlement is better than the alternative of continuing litigation. No magic here!
I recently had a mediation case that had been in litigation for more than 10 years in multiple lawsuits in two state courts and in federal court. These cases had been up and down to the SJC and to the First Circuit Court of Appeals. The federal case was still going strong with the possibility of an entirely new case being commenced. The positions of the parties and the court decisions to date were extraordinarily lengthy, complicated and difficult, if not impossible, to understand fully and to reconcile with each other.
In my opening at the mediation, I stated that not only didn’t I understand the facts nearly as well as the parties and their counsel, but I was actually confused by them and by the many court decisions that had dealt with various aspects of this dispute. Like pornography for Justice Stewart, I know a confusing record when I see it. This time I asserted in very strong terms that in light of the extraordinary history of litigation of this dispute, if the parties really wanted a settlement, they would need to stop arguing about the facts and the applicable law and focus instead on what terms each of them was willing to accept as a settlement.
After we settled the case that day, one of the lawyers told me that he very much appreciated my strong statement that the facts and the law weren’t going to get this case settled. He felt that my plea that the parties should focus on what each could live with as a settlement resonated with them and with him.
Of course, each mediation presents a different set of challenges and there is no one size that fits all. But I believe that very often, the probability of a settlement of a protracted dispute can be significantly enhanced by the sometimes jarring and counter-intuitive, but explicit, recognition that the facts and the law matter much less than what the parties are willing to live with in the settlement of the dispute.