Mediation Tip: Power of seeing the other side

September 7, 2014

In the past two weeks of mediations, there has been one powerful apology by a company HR person to the plaintiff, and a number of "meet & greets", some just among the lawyers, some involving the clients as well. Nothing was discussed about the case, gloves were off and civility was on. What happened? A mix of hugs, tears, a lot of talk about children and grandchildren, (with photo bragging), sports and other personal interests. What does this have to do with the mediation? In this day of anonymity and hiding behind texts and emails, I am constantly amazed that lawyers have never spoken to one another, months into the litigation. it is far too easy to dismiss the other side as evil and never see them as human beings. People are suspicious of one another, concerned about ulterior motives in meeting. Meeting together can dissolve worries, fears, anger and even hatred. Most of the time, it is just about one or both side's interest in putting a face to the people in the other room. In a case I mediated over a year ago, one lawyer tensely walked into the other's room. The defense lawyer spied the plaintiff counsel's rubber wrist band (usually depicting a cause or organization) and it turned out that they both belonged to the same men's group. In another, I mentioned some shared interests that came to light during the separate caucuses, which led to a discussion about running races, triathlons and soccer. At the right time, and with an open attitude toward meeting, positive things can emanate, making it easier for everyone to then close a stubborn gap and reach settlement. There are a handful of cases where meeting is not appropriate, but in most, there is little to no downside, and the prospect for upside.

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