Any lawyer with significant litigation experience has had the pleasure of dealing with opposing counsel who just cannot pull the trigger on settlement; a non-mythical creature known as ‘the reluctant lawyer.’ Settlement conversations with the reluctant lawyer can be very frustrating and often lead to a desire to get a mediator involved in the hope that a neutral third party will be able to give the reluctant lawyer an evaluation of the case upon which he can rely in settling the case.
Unfortunately, at least in my experience, the issues that prevent the reluctant lawyer from settling the case directly with you do not necessarily go away with a mediator in place. At the mediation, the reluctant lawyer complains that the other side thinks he is weak, afraid to try the case, that he is not taken seriously and he thinks that he is leaving money on the table. In this instance, the reluctant lawyer probably needs a psychiatrist more than a mediator.
So what can an experienced mediator do to overcome this neurosis and get the case settled?
In dealing with the reluctant lawyer, I believe that the mediator is better served not arguing the points of the other side, as the reluctant lawyer will not view the mediator as neutral, but part of a conspiracy with the opposing side of the case. Instead, the mediator needs to take a step back and provide the reluctant lawyer with an objective neutral evaluation of the case. The mediator must gain the confidence of the reluctant lawyer in order to be able to calm his nerves and provide him with confidence that settling the case at a fair number is the objectively right thing to do and not a sign of fear, weakness, or leaving money on the table.
While not necessarily an easy task for the mediator, sometimes it is necessary to become the psychiatrist, at least in terms of helping the reluctant lawyer to become comfortable that proposed settlement is fair and reasonable.
Bruce A. Friedman is a mediator with a national practice. With years of litigation experience behind him, he understands the goals of the mediation process and will do his best to ensure that the needs of both parties are met, justly and efficiently. For more information on the mediation services that Bruce A. Friedman provides, check out his website at http://www.FriedmanMediation.com, his profile at ADRServices.org, or call him at (310) 201-0010.