“I want to make him pay,” said the defendant.  

“Why?” I asked, “What makes you think that the plaintiff – the one claiming to be wronged here – needs to pay you rather than the other way around?”

“Because if I pay, that means he wins and I lose.  I don’t like to lose,” the defendant says earnestly.

I take a deep breath, knowing what has to be said next.  “But you admitted liability.”

The defendant looks at me like I’m an idiot.  “Yeah, but that doesn’t mean I want to pay.”  

Of course it doesn’t.  

Who doesn’t love winning?  Winning is a rush… to strive for perfection and be the best… to finally be told you’re right... to come in first… to close an amazing deal.  When we win, the influx of endorphins in our brain is as powerful as any drug – we crave it, we want it, we need it.

What about the concept of “winning” in a lawsuit?  

At trial, one party must “win” while the other must necessarily “lose.”  Unfortunately, the outcome is never certain.  People engaged in litigation with an eye on trial are consummate gamblers, betting the farm on an unpredictable outcome.  Even with a rock-solid case, there is still risk; no matter how skilled the lawyers and how beneficial the evidence, anything can happen.  A wronged party can lose and a party in the wrong can win.  That’s why most cases settle before ever getting to trial.  The risks of the “win-lose” scenario are just too great.

So what happened in the case above?  

The plaintiff, a producer, writer and actor, alleged breach of contract over the underlying rights to a television series he co-produced with his ex-fiancé.  He claimed she stole the project out from under him, so he sued her to clarify his rights and enjoin her from further exploitation of the series.  Oh, and because his ex is such an awful cheating liar, he also sued her for defamation and fraud.  He has a list of wrongs and promises to pile them on if his ex refuses to settle.  Declining to meet with her in person, he gives me a list of increasingly angry messages directed her way.

Defendant has her own litany of wrongs, claiming her ex filed a “revenge lawsuit.”  She explains:

“He thinks I was cheating on him, but I wasn’t.  This is just another example of how manipulative he is.  He’s just jealous because I was the one who actually got the project made.  Because he brings nothing to the table, he’ll be kicked off the project and end up with jack squat.  Did I steal the rights out from under him?  Yes.  Did I tell everyone that he stole my camera equipment?  Yes.  Did I tell his financier that we had a written agreement between us when we didn’t?  Yes, damn right I did.  I did all of that.  Because he deserved it.  I am smarter than him and more well-liked than him and I am going to win.”

The problem is that she might very well lose.  We discuss the strengths of his case and the strengths and weaknesses of her defenses, and I listen to her rant for a while more.  Finally, I ask her what “winning” will get her.  She has some pie in the sky notions, but that’s ok… we all do.  So then I ask her what losing will get her.  That stops her in her tracks.  

“What do you mean?” She asks.

“If you lose this lawsuit, what will happen?” I clarify, “Let’s talk it out from the moment in court that you lose.  What happens next?”

She turns to her lawyer, shrugging.  Her lawyer raises his eyebrows at me.  He’s not sure where I am going with this, but he has told me privately that he believes she needs to settle, so he is willing to play along.  I rip off a couple of pieces of paper and give them to the lawyer so he can write a list of what will happen if she loses.  He writes the list as he explains…

Twenty minutes later, with an extensive list of fees, costs and consequences, she is pale as a ghost.  “Can any of this really happen?” she asks.  

She just got a necessary reality check.  Her need to “win” was suddenly replaced with a need to protect herself.  Her emotional hubris evaporated when faced with the stark reality of what might happen if she loses.  

That’s why I mediate.  In litigation, everyone is at risk.  In mediation, we don’t have to focus on win-lose scenarios; instead, parties can agree to any settlement that meets their needs, allowing for out-of-the-box ideas that can benefit everyone.  There doesn’t have to be a winner or a loser.

In this case, I was able to identify what was really driving both parties.  It wasn’t money, but rather a need to be heard and a need for closure.  Once both parties realized the underlying reason for the lawsuit, the tone of the conversation changed from “win-lose” to “moving on.”  

As it turns out, neither party cared about money… it was all about credit, respect and the potential to share in what might someday be a profitable project.  I was able to settle the case with no money changing hands, which suited both parties just fine.  We also clarified the underlying rights and royalty shares to the TV series, formed a new entity to handle the production, solidified creative credits and promised confidentiality.  The best part was that the parties, who were spewing vile vitriol at each other in the beginning of the mediation, actually wished each other well at the end.

Now that sounds like a “win” for everyone.

By Terri Lubaroff

Terri Lubaroff, Esq. is a conflict resolution specialist, having honed her skills first as a film and television producer and later as a full-time mediator and arbitrator. She specializes in Entertainment, New Media, Employment, Consumer Torts and Business Disputes, and is adept at dealing with difficult personalities. She is a member of the Florida Bar and is a full-time neutral in Southern California with Agency for Dispute Resolution.