Early this summer, the Rodent cynically complained that mediation “hasn’t progressed much since the days of the Hatfields and McCoys.” (DBR, June 19, 2012). I’m not sure if the little guy needed a vacation or just lacked perspective, but his rat hole has a very limited view. Mediation should be no different.
The implied threat in every mediation offer is that the offeror’s case is so good that his adversary will be sorry if he rejects it and stays in court. That threat can ring hollow, however, unless counsel bolsters it by recapping the key components of his position, preferably with exhibits, a PowerPoint, or a similarly persuasive tool. Although the parties may have spent years duking it out in depositions and motion calendars, a comprehensive opening can help an adverse party see the big picture and understand that despite winning small battles along the way, his prospects of winning the war at trial may not be particularly rosy.
The Rodent’s premise—that mediation consists of snarling demands and counteroffers, followed by disingenuous comments by the mediator, ultimately resulting in impasse—undoubtedly reflects some unfortunate mediation episodes. Fortunately, though, it does not reflect all mediations. Counsel can avoid this inflame-and-impasse syndrome by capitalizing on a key tenet of modern mediation, namely, focusing on the merits of the case and not just the numbers—an approach I call merit-based mediation.
Providing a credible reason for someone to accept an offer is hardly a novel concept: we don’t ask judges for rulings or juries for verdicts without first making our case. Mediation should be no different.