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This commentary is based upon general commercial litigation, including banking, real property, construction disputes and the like, although the subject may well apply to personal injury and family law matters.
The subject, sub judice, involves one or more parties to a civil mediation coming into the session with strong beliefs or a predisposition on the merit of that party’s view of the case from his/her standpoint.
This presents, in many cases, quite a hurdle to jump if the mediation is to result in a successful settlement when you recognize that the party has strong beliefs about his/her entitlement for settlement.
This mental state distracts from the need to have an open mind and a belief that mediation is a good way to reach a resolution to the dispute.
It also presents an initial and perhaps ongoing hurdle which must be dealt with if the mediation is to be successful.
Addressing the predisposition
In the initial commentary/comments by the mediator, it should be stressed that the parties need to adopt and keep an open mind as to the contentions of their adversary(s).
The mediator should also stress the benefits of a mediated resolution which has at its foundation the element of compromise.
If the mediation occurs after material discovery of events relevant to the dispute at hand, then the parties are probably in a better position to hone in on what is specifically in dispute which, in turn, should minimize a party’s predisposition about how the case could be settled.
If the mediation occurs early on, in order to get to the open mind state, counsel for the parties should try to crystallize the matters on which there is material dispute early, preferably in the pre-mediation statements. This will aid in pushing the predisposition hurdle to the side.
If the mediator senses that a party is loath to the concept of compromise because of a predisposition, during a breakout session the mediator can ask relevant questions of the party and/or counsel which focus on the opportunity to resolve the matter before trial and continued litigation, again with the idea of getting the party to keep an open mind and exercise patience.
Should one or more of the parties be accustomed to disputes/litigation, such as insurance risk managers or others whose job activities involve dealing with disputes, such effort by the mediator will be far easier compared with an individual or a business not so accustomed to dealing with disputes.
Enlisting the aid of counsel in the endeavor to belie a party’s predisposition which is adversely affecting the opportunity to compromise and settle also is important for the mediator to recognize and take advantage of as necessary.
A predisposition is generally one of several mediation hurdles most often encountered, but it generally occurs early, before the mediation session even becomes a reality.
Understanding its frequency and acting to overcome it can prevent it from interfering with reaching settlement.
After the initial session and breakout sessions, two catch phrases come to mind: Litigation is like a piece of bread, there are two sides; and a good compromise results in all parties being somewhat unhappy with the settlement.