The Perfect Mediation

By Frank Laney

Yesterday I had the perfect mediation. This mediation went perfectly because of four factors. The parties and their representatives knew the relevant law, they knew the facts of their cases, they came motived to settle, and they came with flexibility. An added factor was that once the parties talked and became convinced that the other side knew the law, knew the facts, wanted to settle rather than posture and had flexibility, then trust was quickly established between the parties, making the talks proceed even more smoothly and quickly.

We had a set of five related cases between two sets of parties. We worked well together, and in about five hours, reached settlements based on money paid in four of the five cases, and then in a cooperative discussion, agreed that the issues in the last case could best be resolved on terms other than money. We recessed for one side to explore the newly discovered issues and talk to their experts and decision makers to see how we could proceed with accommodating the other side’s concerns.

The representatives on each side were experts in their field. They both knew the law and process. They were all well aware of what would happen if the cases did not settle, including the process and analysis the court would apply at trial. Thus, there was no need for or profit in chest beating or posturing. They were professionals treating each other and the dispute professionally. I wish I could name the representatives to give them the praise they deserve, but that would be a serious breach of confidentiality.

Each side also was well prepared. The first side had a set of handouts/PowerPoint deck laying out their view of each case and how they evaluated it, all backed up with expert evaluations and specific numbers. The second side then pointed out what they considered to be errors or flaws in that analysis. They would point out that some of the expert opinions were several years old or based on data that was several years old, and since prices had changed in the meantime, the offers were too low. The second side would also point out factors that the first side had not taken into consideration, usually because of facts that were not known to them. The second side knew the issues and how these new facts should alter the acceptable settlement range. They made reasonable, rational counteroffers that were usually met with one of two answers. The first side would acknowledge the value added by the new facts and was willing to adjust their offer appropriately. When dealing with new information, the first side usually conceded the import and value of the new information and quickly agreed to an acceptable value adjustment. Secondly, after most of the new information was considered and their offer modified, as to issues of disagreement on valuation, the parties would split the difference and agree on a settlement.

This split-the-difference attitude demonstrated a real interest in settling and willingness to exercise flexibility to get there. That neither was there to take advantage of the other. Both parties expressed over and over that, one way or another, the disputes would be resolved, and they would have to deal with the outcome. It made a lot more sense to talk it out now than to go to court and spend money on trial preparation and witness fees. Both sides also said numerous times that they wanted to be fair to the other and just wanted to be treated fairly in return.

Once this collaborative, cooperative attitude was evident, there was little for me to do. I did a little traffic directing to keep the flow from case to case organized, such as asking questions from time to time to make sure that we all understood this detail or that. But largely, I stayed out of the way and let the parties and their representatives do their work, resolving the cases in ways that made sense to them in their particular context. The conversation was extremely collegial by the end. After we wrapped up and decided to reconvene at a later date, the parties continued to talk, sharing their histories, objectives, interests and ideas. My guess is that once the first side talks further with their people, sharing the second side’s desires and ideas, they will continue the conversation without me and resolve the last case without the need for further formal meetings. They have learned that they can solve their own problems and deal with each other in a collaborative and cooperative manner.

This is the ultimate goal of this dyed-in-the-wool mediator. To generate enough atmosphere of peace that I no longer have a job. I am heartened by this case, but do not fear for a lack of work for all of us mediators.

Frank C. Laney was Circuit Mediator for the US Court of Appeals for the Fourth Circuit for 25 years, mediating more than 5,000 cases before retiring in April 2022. After serving as an ex-officio member of the NC Dispute Resolution Commission since its inception in 1995, he was appointed as a Commissioner in 2021. He teaches the NC Dispute Resolution Commission required training for mediator certification with North Carolina Center for Mediation. He has recently completed his book, The Practical Mediator, a collection of articles he has written about the field of mediation. He has been an adjunct professor at Campbell University and North Carolina Central University Schools of Law and is a Senior Lecturing Fellow at High Point University School of Law.

He has been a member of the NC Bar Association Dispute Resolution Committee/Section since its inception and is a past Section Chair. He chaired the joint Section-Commission committee responsible for the 2012 updating and rewriting of Alternative Dispute Resolution in North Carolina, A New Civil Procedure, serving as an author and co-editor of the book. In 2004, the Section presented him with the Peace Award. Laney can be reached at 919-818-8029 or [email protected].