United States: Stop, Collaborate And Listen – Settlement In Mediation

Last Updated: December 16 2013
Article by Robert A. Epstein

The golden words in this blog title once spoken by Robert Van Winkle (more famously known by another name) could and should be well heeded by family lawyers and litigants when trying to settle a case.  So why, then, are they so often ignored?  I recently attended a mediation in a case where, as soon as I walked into the mediator's office, my adversary did not "stop" talking or arguing his client's position, did not "collaborate" with me, my client, or the mediator to facilitate a settlement, and did not "listen" to anyone other than himself.  Not surprisingly, the case did not settle.  Not surprisingly, the parties left dissatisfied with the outcome.  Not surprisingly, the only progress that was made was when my client made proposals on various issues, since the other party refused to do so.  In fact, it was clear from the moment that we started the mediation that the other party had no intention on settling at all – a sentiment that I made clear in requesting to leave so that my client did not incur more counsel fees than she already had.

Considering that the point of mediation is to actually settle a case, or to move towards a settlement, it always surprises me when this sort of conduct occurs, even in the wild world of family law.   With that in mind, let's break down the three components as they relate to settling in mediation:

STOP:  It is no surprise that family law cases can often be quite acrimonious, with attorneys frequently arguing with each other at least as much as the parties.  Such conduct, however, ultimately serves no one.  Worse, one or both parties/attorneys often feel the need to essentially "run" the mediation by only allowing their points to be heard, talking over the other party/attorney, interrupting the other party/attorney while feigning insult should the same happen while he or she is talking, etc.  At the mediation I reference above, the other attorney seemed to believe that if he was the first person to assert his client's position, it somehow meant more to the mediator.  The same can be said for the amount of time that he spoke - i.e., he believed that the longer he spoke, the more important his client's position became. In that world, the case simply will not settle, and will only heighten the acrimony.  To that point...

COLLABORATE:  The entire point of mediation is to settle your case.  While you as the litigant may not agree with or like the other party or attorney (also very common), use your best efforts to work together, in a collaborative fashion, to achieve a meeting of the minds on the issues in your case.  Consider the positions being taken by the other party and, if reasonable, work with those positions to reach a compromise.  If you and your spouse are starting in a different "universe", then there is only so far you can go.  If you are on Mars and she is on Venus, however, then keep the momentum going.  Ultimately, a good settlement is one that neither party is happy with because each side gave in on certain issues.  If one party refuses to budge, the case will continue, which is sometimes what that party wants to force the other party to give in, incur more fees, and the like.  In the mediation I reference above, the other party was completely unwilling to convey his prior settlement position to the mediator because he had obviously taken a step backwards towards a more aggressive approach and did not want to make it seem as if he had previously been in a more reasonable place.  While a litigant is entitled to engage in such conduct, then why mediate at all unless your entire goal through the mediation forum is to send a stern "message" that you will not be denied in what you want.  These tactics are almost always transparent to the other party/attorney, and will only cause the other side to push back, and the litigation will continue.

LISTEN:  Parties in a divorce matter often do not want to listen to each other (worse, the lawyers may love listening to only what they have to say).  Typically, progress can only be made when both parties are willing to listen to each other, understand each other's position, and...collaborate.  I try to follow the mediator's lead, and always encourage my client to do so, to get a sense of the other party's intentions, while also providing the mediator with a level of respect that allows him or her the best opportunity to successfully perform the stated task of settling the case.  I found it interesting that in the mediation I reference above, my adversary outright refused to allow his client to talk, even when his thoughts or suggestions may have been helpful towards reaching a resolution.  Literally, for four hours, the other party sat silent in a room with his attorney, myself, my client and the mediator.  When the client spoke up and offered something useful, his lawyer would chime in that he really should stop speaking.  Again, what is the point of attending a mediation if there is no intention on actually settling, unless the only ploy is to scare the other party or send a message that there will be no compromise.

While no one can force a party to settle, the New Jersey court system certainly mandates parties to try and do so many times before a trial may ultimately occur.  Rather than wasting everyone's time and money by turning a mediation into a private trial, better serve yourself and your wallet by working towards a resolution in mediation, rather than away from one.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Robert A. Epstein
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