It is often said that the smaller the amount in dispute, the harder it is to settle the matter. I agree having just experienced such a mediation.

The matter was on appeal. The parties wanted to mediate before the opening brief was due in the hopes of settling early and before more time and expense had been invested.

The issue was simple: when does post judgment interest begin to accrue on an award of attorneys’ fees? From the date that the underlying judgment was entered or from the date that the attorneys’ fees are awarded (which could be several months after the entry of judgment on the underlying matter?) That is, is such post judgment interest retroactive?

In the case to be mediated, plaintiff won an underlying judgment in September 2010 and was awarded attorneys’ fees in April 2011. In response to a motion made before the trial court in August 2011, the court calculated the amount of principal and interest still owing to plaintiff, assessing interest on the attorneys’ fees award from April 2011 rather than September 2010. Defendant duly paid this amount.

Plaintiff appealed, contending that interest on the attorneys’ fees award should have been calculated retroactively to the September 2010 underlying judgment. Consequently, plaintiff contended that approximately $5,000 more was owed by defendant (plus accruing interest!)

So, here I am – mediating an appellate matter involving $5,000 – by telephone no less -since the parties were located in different parts of the state. Anyone with a little bit of experience will soon surmise– that this dispute is not about the money – it is about something else – the relationship, ego, et cetera. And, she would be right!

With a little bit of questioning, I soon learned that the relationship between opposing counsel had not been so cordial in the months leading up to trial and during the trial. In the underlying case, plaintiff’s counsel had demanded that the defendant repurchase the vehicle; at trial, the jury awarded only a minimal amount of money to plaintiff. Arguably, plaintiff’s counsel was upset at this result.

During the initial rounds of the telephone mediation, plaintiff’s counsel made demands, and defense counsel countered with only minimal sums, contending that the trial court had not erred in its calculations.

After two or three rounds of seemingly getting nowhere, I discussed the relationship issue both with plaintiff’s counsel and in more detail with defense counsel. Then, in a subsequent round in which the parties were still far apart, defense counsel – on her own accord and unsolicited by me – asked me if I thought an apology to plaintiff’s counsel would help the negotiations? I said “yes” as plaintiff’s counsel was clearly upset about the lack of cordiality. So, I set up the conference call, and defense counsel apologized with sincerity. It was short but sincere! The apology conference call lasted less than a minute! But, the apology worked wonders making all the difference in the world! The demeanor of plaintiff’s counsel was far different afterwards than it had been prior to the apology! (It was much softer!) She was much more amenable to settling and for a far lesser amount.

One or two more rounds later, the matter settled! And, at an amount far less than plaintiff’s counsel initial demand. Plaintiff’s counsel’s upset had been recognized, acknowledged, and appropriately addressed. Plaintiff’s counsel was once again accorded the respect and status she believed she deserved.

So…it is not always about the money! More often than not – it is about the relationship. And an apology goes a very long way to repairing that!

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by Phyllis G. Pollack

Phyllis G. Pollack is a full time neutral in Los Angeles where, as President of PGP Mediation, she focuses on business, real estate, contract and “lemon law” disputes. She may be reached at Phone: 213-630-8810 / phyllis@pgpmediation.com / Website: www.pgpmediation.com