Today, I conducted a very contentious six hour mediation.
The rubric of the case was legal malpractice. The underlying case
involved a suit by the live-in girlfriend of a deceased celebrity, under Marvin, for quasi-contractual recovery of as much as $2 million
dollars. The malpractice itself was, as I saw it, clear. The
damages, though, as is the usual case, were very slippery. The case was
either going to be a home run for the Plaintiff, with a recovery of as much as
half the proceeds from a very successful album, as well as live performances,
or, on the other hand, a defense home run, with a Marvin case, bereft of the music and of minimal value.
In this case, there was no middle ground. The value was
either de minimus or
substantial. To exacerbate things further, defense counsel had to answer
to an insurance adjuster in the Midwest. On the face of it, this was
precisely the sort of case that might scream “impasse” to a less
Fortunately, the two attorneys had a collegial relationship.
I took a huge risk and, after doing a lot of groundwork with each side, decided
that further incremental bargaining would not be fruitful. Instead, I
caucused with both attorneys and did something very unusual. I told them
the range of what I thought the case was worth and that I would make a
mediator’s proposal in that range if I had no tools left. But I suggested
that if counsel would cooperate with me, I wanted to structure the negotiation
to land there or thereabouts. Under this circumstance, both sides agreed
to openly discuss where the negotiations were at that time. This was made
somewhat easier by the fact that each side had already gone way out of what
they believed their settlement range to be.
The case then moved forward. I continued to work at
softening up the Plaintiff in terms of the number itself, while defense counsel
worked on her adjuster. By mid-afternoon, she told me that the adjuster
had made a serious move, but had then hardened his position. Again, I
conferred with both attorneys, obtained helpful information from both, and
suggested that I make a proposal, given the relatively narrow gap that we had
before us. I told them that I would give them the rest of the week to
respond to the proposal.
My proposal did several things. First, it was in an area
that defense counsel could not have possibly broached without the extreme
likelihood of completely losing her adjuster. Second, it was not so far
away from the number I’d been working on with Plaintiff that it was likely to cause
an end to the negotiation. Finally, and most importantly, I calculated
that the number would cause an equal amount of choking and indigestion for each
We adjourned after six hours. I felt that I had gone the
extra mile and produced a result. Both attorneys thanked me profusely
(and separately). This didn’t surprise me, since neither of them gave
this case much, if any, chance of settling. The gap had been well over $1
million dollars once I got started. We ended with a gap of no more than $50-60,000
by the time we adjourned.
This story is just another illustration of my prime credo:
impasse is just an excuse for not going all out. I don’t believe in
impasse, save for the rare exception.
By Alec Wisner