Mediation – Sometimes a Good Mediation is Akin to a Classic Rolling Stones Song

I recently mediated a case between parties who have been litigating for over six years with no end in sight. A peremptory challenge to the trial judge was just granted and, as a result, the parties were unlikely to go to trial for at least another two years. Even worse, the present lawsuit was not likely to resolve all the issues between the parties and the filing of another lawsuit seemed probable. With this background, I set out to resolve the parties’ dispute and put an end to past and future years of litigation.

The parties both submitted briefs which set out where it was possible to reach agreement and where it was not possible. I usually spend the beginning of my mediations listening directly from the parties about the nature of their dispute. This time, I took a different approach. Instead of discussing the dispute, I spent the start of the mediation outlining where an agreement was possible and where it was not. After a long discussion with the plaintiff, plaintiff, for the first time, withdrew the impossible wishes from his settlement proposal. Instead, while still aggressive, the plaintiff, at last, agreed to make a proposal that could be agreed to by defendant.

When I presented plaintiff’s proposal to the defendant’s counsel, she was excited that the plaintiff chose to negotiate in the land of possibility instead of impossibility. After spending substantial time speaking with her client about how best to respond to plaintiff’s offer, she surprisingly responded that her client intended to present plaintiff’s proposal to defendant’s full board of directors. The fact that, in her mind, the plaintiff took a more reasonable approach to settlement led her to conclude that it was better to take the plaintiff’s proposal to the board instead of trying to reach a better deal which may lead her back to the land of impossibility.

Most importantly, after years of litigation, plaintiff learned that the classic Rolling Stones song is true: “You can’t always get what you want/But if you try sometimes, you might find/You get what you need.”