Another Day, Another Marvin

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 experienced mediator.

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 fruiful. 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 side.

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.

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