A Meditation on Mediation Part II: Defendants

In Part 1 of this blog, I sketched out my approach to mediation from a plaintiff’s perspective. The goal was to show that in any situation I’m bringing my best to the table for you.

Let me be clear: that goes for both sides of the table. I wouldn’t be a mediator if I didn’t stand in the middle on behalf of both parties. Let’s start by acknowledging that though there are two sides to the mediation table, they are not similar in any way. The goals of a defendant, their approach to litigation, the significance of a lawsuit to a business entity, and even assessing risk and reward: they are all handled so differently by defendants as to be unrecognizable by plaintiffs.

And plaintiffs and defendants have very different motivations.

For a plaintiff, what has happened is (hopefully) a once-in-a-lifetime experience, and they have nothing to which to compare it. Even to speak of a settlement as if it is equivalent in some way to the pain they live with is unnatural, and this can affect their ability to trust in the process.

For a defendant – and here I mean a business, a corporation, an employer or similar – accidents of the sort that lead to litigation are part of doing business. That’s in no way meant to sound callous; it’s just that if you do a thing long enough, with enough people, and you grow, it’s almost a law of nature that accidents happen. As a business owner, it behooves you to plan for those moments with the help of experts. In addition to baseline data from specialists like actuaries, defendants often benefit most from reviewing legal precedence in like cases. What have settlements looked like in cases that could be classed as similar? What is the likely cost to resolve the problem as quickly and as effectively as possible?

I have been in rooms with one plaintiff and their lawyer; I have been in rooms where whole families show up, each member of which has an opinion about what their injured relative should receive. Sometimes their pastor shows up too, which creates yet another wrinkle in the approach. These folks often aren’t thinking of legal precedence, or of recent trends in settlements; they are quite understandably focused on their loss, and on what that loss means for their future.

My work as a mediator means I must translate the asks and the offers made by plaintiffs and defendants for and to one another, in language they understand and in terms they have some measure of agency to act on.

To that end, if you are a defendant in a case requiring mediation, here’s what you can expect from me:

  • I will be a wise steward of your financial resources, and of your reputation.
  • I will do my utmost to negotiate a fair, reasonable settlement given both the nature of the case and
    legal precedence.
  • I will free you to focus on your goals for a settlement, and communicate the plaintiff’s perspective in
    terms that retain your agency and decision-making ability on behalf of your stakeholders.
    Because we are working together to find a settlement. That doesn’t mean one side wins while the other loses;
    it doesn’t mean one side walks away happy while the other grinds their teeth in despair. It means we find a
    place we can agree to call the matter resolved, so we can move on with our lives and our work.