I often like to say that "we can do this the easy way or we can do it the hard way?" What does that mean? If you want to litigate, we can litigate and we are good at it. However, if you want to try to settle the case and retain control of your own life, children and finances, we can try that too. In fact, given judicial back logs, judicial vacancies, numerous new judges with little family law experience, etc.. the old gunslinger in me has had a change of thinking in recent years. If at all possible, real attempts at resolution without trial should be made. Some cases can't be settled and need to be tried. That's ok too and we do that well
Continuing on the mediation theme in Robert Epstein's post on this blog from earlier today, here is another thought on moving a case forward through mediation. Often a case just meanders along because either one or both parties are not focused on trying to settle (or ready to settle) or one or both lawyers are not focused on getting the case to the finish line. Now, some cases require time to either get the emotions out of the way so that the case is ready for settlement and/or to get all of the discovery done so that you are in a position to reasonably talk about settlement. Several years ago, I authored a post on this blog entitled "All Cases Have a Life of Their Own." But what do you do when you are there and the case is at a posture where you are ready for settlement, but still nothing is happening to move the case toward settlement.
That may be a good time to propose mediation. If there is is push back, then perhaps you get the judge involved to order mediaton. Why? Because it forces people to "get real" about the process and focus on the end game.
Ok, but what happens when the other side's position when the get to mediation is not "real" or at least very unrealistic given the facts and circumstances of the case. Well, aside from forcing people to focus on the issues, if you have a good mediator, the parties may, for the first time, hear an impartial assessment of their case. In some cases, that is all you need to get the case moving toward settlement. In others, the shock that their position is untenable needs to be absorbed and you have to schedule another session. At the next session is often where the real movement begins.
Recently, I had a case that was just languishing because the other side, despite telling the judge that they had enough information to make a proposal never actually made a proposal. They also rebuffed my pleas for mediation. I had a feeling that once we got to a mediator, we could get the case done. After being forced to go to an Early Settlement Panel, the next step was mandatory economic mediation. Finally, a venue to start talking. When we got there, the other side took positions that went beyond extreme to the level of absurd. This was disappointing, but we didn't storm out. Rather, we made clear that there was no way we were going to continue if that was the real position. We also made a "real" counter. Interestingly, the mediator had me come with him while he told the other side with the stated purpose that I can report back to my client that his proposal was properly conveyed. He did another thing. He conveyed (1) that he thought there was not a lot of room for negotiating (i.e. we weren't splitting the differences between reasonable and unreasonable) and (2) he thought our proposal was in the realm of reason. The case settled shortly thereafter.
What is the take away? You can't settle if you don't start talking about settlement. Sometimes it takes a mediation to (1) force you to focus on resolution and (2) focus on the right resolution – re-directing positions that are not reasonable to ones that are in the right ball park. The alternative is litigation.
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