The fastest way to end a mediation without settlement is for someone to leave.
The second fastest way is for the mediator to give up.
The third is for one (or both) of the parties to give up.
“[N]ever give in, never give in, never, never, never, never—in nothing, great or small, large or petty—never give in . . . .”
-Winston Churchill, October 29, 1941 (quoted in www.WinstonChurchill.org)
In October of 1941 Great Britain was locked in combat with Nazi Germany during the early years of World War II. Things appeared dire for England. During this conflict the British entertained the idea of surrendering to Germany and thereby avoiding wide scale German bombing and destruction of English cities and countryside. This was a very realistic option available to the British.
Churchill wouldn’t hear of it. In a speech at his old school of Harrow, Churchill gave a stirring address encouraging those present to “Never give in.” During the following months and years he followed his own advice. He was tenacious; he was relentless; he never gave up; he never gave in; he fiercely held on without yielding.
During the course of some mediations, I reflect on this attitude; this relentless drive of Churchill’s to never give up and thereby accomplish a highly valuable result. Litigation is unpleasant. Emotions run high. Frustration abounds. Mediation is no different. Sometimes emotions get the better of people and in an effort to control their environment (or the other side), they simply fold up shop, stand up and walk out.
But until that happens, settlement is always a possibility. Settlement may not be the best option in every situation. But I’m a firm believer that settlement is the best option in most situations. I’ve seen too many situations where a settlement fails; parties resume their litigation positions and they end up fighting and spending substantial amounts of money for no appreciable benefit. These cases get toxic. Nothing good comes of them. Everyone is worse off than if a settlement had been reached. In a very real sense, everyone loses.
So what makes the difference between a mediation that fails and one that succeeds? I am firmly convinced that many times — many, many times — settlement is a matter of sheer tenacity. Frankly, it’s often easier to throw in the towel; to let the other side stew in their own juices; to let them fashion their own ruin in their stubbornness and then hand them the due rewards of their own poor choices. But if the other side continues to fight, then everybody loses. Everybody.
So why not fight the good fight? Why not hang in there and get a settlement done regardless of the poor choices by the other side? The answer is that it often takes sheer grit to get a settlement done in these circumstances. Achieving a settlement under adverse conditions requires a high degree of tenacity. It requires an unwillingness to take the easier route; a determination to run the matter to the end of its course. Often, it’s much easier to just “throw in the towel” and resort to the long, slow, grind of litigation. But even though an unfavorable settlement is often difficult to swallow, the bitterness of protracted litigation is often even less satisfying. Not every case can be settled. But I firmly believe that more cases could be settled if the settlement discussions were handled with more skill – and tenacity. Often the difference between settlement and the long, slow bleed of litigation is determined primarily by tenacity (or the lack of it). I’m absolutely convinced that more cases would be settled if we were determined to follow the advice Churchill gave so many years ago by never giving in until a settlement is reached.
Robert B. Jacobs is a mediator and arbitrator with over 30 years of litigation experience. He mediates business, real estate, construction, personal injury, wrongful death, trust and probate cases. He is a designated Super Lawyer and holds an AV rating with Martindale-Hubbell. He was the 2020 chair of the ADR section of the Contra Costa County Bar Association and the co-chair of the ADR section of the Alameda County Bar Association. From 2018 through 2021 he was an update author for the CEB treatise Real Property Remedies and Damages. Reach him at [email protected].