When An Impasse Is All There Is, It Matters
Mediation has arrived as an accepted medium for getting cases resolved, both pre-suit and at every stage in the litigation, up to and including the weekend before a trial is scheduled to begin. In the last five years, mediation has exploded in popularity and attorneys on both sides have embraced its effectiveness. While they may not always agree on a case’s value, plaintiff’s attorneys and defense attorneys all agree on exhausting settlement negotiations at mediation in an effort to minimize risk, save litigation expenses, and expedite resolution of the case before spending countless man-hours prepping for trial on cases that should be settled.
Most parties enter into mediation with hopes of getting their case resolved by the mediator before the close of business that day. Whether court-ordered or stipulated by the parties, a mediation is an opportunity for the plaintiff’s attorney to get paid and the defense attorney to close a file. Barring those exceptional circumstances when the chances for settlement are doomed at the outset, usually for reasons wholly unrelated to the motivated parties themselves, every case that goes to mediation starts out with the goal of being compromised in a manner that is suitable to both parties. More importantly, about 80% of those mediated cases actually do settle at mediation. For those cases which end in an impasse, however, the success rate for resolution thereafter is predicated on the conduct and demeanor of the parties immediately following the mediation.
When The Fall Is All There Is, It Matters
At the end of the 1968 movie, The Lion In Winter, there is a scene where the three brothers, Richard, Geoffrey, and John are hiding in the dungeon while Henry is coming down to execute them. Richard, the eldest, tells his brothers not to cower but to take it like men, boldly stating, “He’ll get no satisfaction out of me. He isn’t going to see me beg.” Geoffrey, the younger brother exclaims, “My, you chivalric fool, as if the way one fell down mattered.” Richard replied calmly, “When the fall is all there is, it matters.” That sentiment is never more relevant than at the end of a mediation which ends in an impasse.
On average, one out of every five mediations ends without a settlement between the parties. Impasses happen. The way in which the parties conduct themselves immediately following an impasse, however, may govern whether a case will resolve within a few weeks or ensure that it goes forward to trial.
Mediations are a great forum for the exchange of information and the discovery of subtleties in litigated cases that the parties may not have fully realized beforehand. Often one party discovers information so counter to what was expected heading into the mediation that extra time is needed to complete further discovery and investigation of the facts or medical records. There are times that one party may need to digest everything that happened over the course of the mediation. Other times the parties may get so close to an agreement, yet still be beyond the settlement authority that an adjuster brought with her to the table.
In those cases especially, where an immediate agreement cannot be reached on the day of mediation, it does not automatically mean that negotiations are over. It may just mean that more time is needed. For plaintiffs, that can mean assessing their risk in light of newly discovered information. For defendants, that may mean writing reports, crunching numbers, participating in round tables with other adjusters, or and running things up the flagpole to get more authority. Therefore, as suggested in the quotes from The Lion In Winter, when an impasse is inevitable, and the fall is all there is, it matters how you leave the mediation.
Conduct Yourself As Though You Plan And Hope To Settle Your Case
If The Lion In Winter provides us with a plan on how to handle impasses, our youth sports and children provide us with the blueprint on how to execute the plan. If your children have ever played a sport like soccer, basketball, or tee ball, you know very well that the teams line up at the end of the game so that each player can shake the hand of each opponent. Win or lose, it’s a staple at the end of games, followed immediately by the tradition of team parents passing out orange slices and Capri Suns. Even the most dedicated little athlete usually gets over the frustration of a loss by the time the Capri Sun is drained and their orange is consumed.
There is a lesson to learn from watching our kids. Our children exhibit the exact behavior you should model following an impasse. Most of the time an impasse does not happen on the very last move. Instead, the parties are usually able to see the impasse coming several moves before the end. If the parties are aware of the impending “fall”, it matters how you act when the impasse arrives.
Setting aside the client’s emotional involvement and personal feelings, a mediation is a business decision. Rather than fall into the trap of letting anger or frustration govern your actions, take a deep breath. Take a moment. Be a professional. Be cordial to opposing counsel. And shake hands. Certainly, if you’ve got an emotional client who was overly drained by the process, you should allow them to leave the mediation privately. The attorneys and adjuster, however, should stick around to discuss with opposing counsel the next steps that need to be taken before reaching another decision point.
Sometimes the defense has reporting that must be completed in order to explore whether the insurance carrier has more authority to make increased offers. Other times, the plaintiff may go home and discuss with family members the amount of the last offer on the table and rationalize that the ‘bird in the hand’ is better than the scary prospect of going forward with a trial. Storming out of a mediation in an angry huff, however, precludes any such continuing discussions. It figuratively and often literally shuts the door on further negotiations and usually handcuffs the mediator from being able to keep open the lines of communication.
Keep that in mind the next time an impasse seems imminent on the day of mediation. An impasse doesn’t mean a settlement can’t happen further down the road. It is often just an invitation to continue the discussions after further reflection. Either way, the manner in which you conduct yourself upon realizing that there will be an impasse matters . . . and it matters a great deal. In my experiences as a mediator, when the parties are as cordial after an impasse as they are at the beginning of a mediation, there is always at least a glimmer of hope of getting the case resolved over the course of the next several weeks.
The opposite is true, however, when a party storms out in dramatic fashion. Such juvenile antics almost always signal a figurative and literal slamming of the door on any future negotiations. For a big metropolitan city, Atlanta is really a very small town when you think about the legal market. Chances are that you will see or work with your opposing counsel again on more than one occasion thereafter. There is no need for either side to act like a jerk following the impasse.
Your Mediator Should Be A Liaison For Continued Settlement Negotiations
A strong mediator will have a feel for the pulse of the parties both during and following a mediation. If it is not readily apparent to you where the settlement discussions went off the rails, engage your mediator and gauge his thoughts about how you might keep working towards a compromise. While an impasse should be viewed by the attorneys as an invitation to the attorneys to keep going, impasses should seem like a blaring siren to your mediator. The impasse should signal to the mediator an immediate need to shift his effort into overdrive in order to push, prod, and exhaust all settlement possibilities. A strong mediator will go the extra mile to help keep the parties actively involved in continuing settlement discussions. Moreover, he will initiate the process to take the burden off of the individual attorneys.
Do not allow an impasse to prevent you from resolving your case after a mediation. An impasse, if handled properly can just be a hiccup or a small delay in getting your case settled. Impasses happen. How you comport yourself following a mediation matters. Model your behavior after the very kids you drive to and from practice each week just to watch their games on the weekends. Shake hands. Be cordial and show your opponent good sportsmanship. Involve your mediator and seek his assistance as a liaison between the parties for continued settlement negotiations. If you do all of these things in the wake of an impasse, you just might be rewarded with a pay day or a closed file.