Five Kinds of Cases

When it comes to mediated settlements, there are five kinds of cases:

1. Cases that are going to settle
2. Cases that won’t settle at mediation, period
3. Cases that could settle but don’t because of incomplete preparation
4. Cases that will settle following typical settlement discussions
5. Cases that may or may not settle depending on how the mediation is conducted

Following are some observations about such cases from someone who regularly mediates them.

1. Cases that are going to settle.    Counsel evaluate their cases before coming to mediation.  If plaintiff’s counsel places a lower value on their case than defense counsel, then such a case will likely settle.  Plaintiffs don’t want to leave money on the table. Defendants don’t want to give away the store.  But if the defendant values the case higher than the plaintiff,  a case will almost certainly settle if mediated properly.
2. Cases that won’t settle.  Case valuations  vary judge to judge and from jury to jury.  Such variances can serve as an incentive for the certainty that comes with settlement.  Experienced counsel usually have some idea of what kind of judgment is likely to be entered in a case, and when counsel and the parties are reasonably aligned in their case valuations then settlement is possible.  But sometimes the sides are so far apart that no settlement is possible regardless of what’s said or done at mediation.  Why does this happen?
   1. Sometimes one side misunderstands the law.  If one side believes they are positioned for a complete win then they may be unwilling to compromise their position.  If a summary judgment motion is filed then such a difference of opinion on the law may be resolved.  But if no motion is filed, then the  case may have to proceed to trial.
   2. Non-monetary considerations can scuttle a settlement.   Many cases are about money.  But some cases are about what the money represents.  If a plaintiff has been injured, either emotionally or physically, or if a plaintiff has been offended or disrespected,  a large settlement amount may become a symbol – a substitute – for their injured dignity, pride, ego or physical well-being.  Some employment cases are like this, when a plaintiff feels they have been wrongfully treated or terminated.  Some personal injury cases are like this.  Lots of family cases are like this, such as trust litigation disputes between siblings or breakups of family joint ventures or partnerships.  In such cases the plaintiff’s demands may seem  detached from reality. But the extremely high monetary demands  may be driven,  by non-monetary considerations such as wounded pride or disrespect.
3. Lack of preparation.  Advance preparation can be  key to mediation success.  Sometimes a key decision maker isn’t present at mediation.  Sometimes counsel or parties have a hard stop so that they must leave before the mediation is completed.  The fastest way to end a mediation without a settlement is for someone to leave.  Sometimes a claimant hasn’t fully worked up their damages such that they don’t know the full cost of repair or treatment.   Defendants who don’t receive full information about a plaintiff’s damages in advance of mediation  can’t realistically respond to a claimant’s damage claims.  Sometimes plaintiffs come to mediation hoping that the defense will offer so much money that the case will settle – but that’s a rarity.  If the defense isn’t provided with the full scope and costs of repair or the full costs of treatment, then most defendants won’t be willing to make an offer than includes those costs.  Mediation may be a step towards identifying  further case workup  needed  to position the case for settlement, but settlement at an initial mediation is unlikely.
4. Likely Settlements.  Where plaintiffs and defendants both realistically evaluate the case, then if the mediation is conducted properly the case will may well settle at mediation.
5. Cases that could settle but don’t.  This is where the rubber hits the road.  There are many cases that could settle at mediation – but don’t. What is it that makes the difference in whether or not such a case settles?  Several things:
   1. Tenacity.  First and foremost, an effective mediator must be tenacious.  There will always be speedbumps and difficult personalities at mediation. There will usually be differences in values and perspectives between counsel and the parties. If a mediator gives up at the first sign of difficulty then they will never get to the point where they can truly determine whether or not a case can be settled that day.   Above all else, a highly effective mediator must be tenacious.
   2. Focus.  Let’s face it:  mediation is difficult. People are on edge.  Clients are often apprehensive or angry.  Emotions flow freely.  Clients or counsel get snippy, discourteous, demanding, short tempered and sometimes downright offensive.  A mediator with thin skin may end up throwing in the towel out of sheer frustration.  An effective mediator cannot – simply must not – take offense at  things that are said and done at mediation.  Otherwise, their own ego, pride and feelings get in the way and the mediation may be over before it really starts. .  An effective mediator must be focused on the case and resolution..  That’s not to say a mediator must submit  to abuse – but they must be able to navigate   strong emotions and offensive conduct without letting them get in the way of resolution.
   3. Drive.  The mediator sets the tone of the mediation.  Even though parties and counsel come to mediation with their own perspectives, it is the mediator that sets the tone and the direction of the mediation.  A mediator who gets lost in the weeds – in unimportant detail – may find the mediation focusing on issues that don’t advance  towards a settlement.  An effective mediator needs to get into a mediation and quickly  identify  key issues,  emotions,  values and  decision makers who will ultimately make the key settlement decisions.  All of this needs to happen up front  because successful mediations take time and if the mediator doesn’t keep things moving towards settlement they may find themselves out of time at the end of the day.  A mediator cannot foster a confrontative atmosphere.  The mediator must always be able to dial down their own emotion as well as high emotions from counsel and parties.  If a mediator allows themselves to become embroiled in a battle of words,  the focus of a mediation can quickly shift from resolution to “being right” or “being in control.”  When the focus of a mediation shifts from resolution to a contest about control or ego, that mediation may well run off the rails.
   4. Personable.  An effective mediator must inspire trust and confidence in  parties and counsel.  If counsel don’t trust the mediator, then they will never disclose their client’s values or what they truly need – and if this happens the mediation may end without the mediator’s ever finding out whether there could be a match-up between the respective parties’ bottoms lines.
   5. Sum up.  Many cases settle at mediation.  But with skillful handling an even greater number could be settled.  Some cases fall by the wayside because counsel or the mediator allow nonessential considerations to pull the focus away from the key issues.  In order to fully explore settlement, a mediator must keep the case – and the parties – on track.

Robert Jacobs is a neutral with Judicate West. He litigated cases throughout California for more than 30 years and now serves as a mediator and arbitrator in Real Estate, Business, Construction, Personal Injury, Employment, Medical and Dental malpractice and Trust Litigation cases.