Monday, March 4, 2013

Inquire About Each Disputant's Agenda Before you Begin





     Litigation is typically a well-orchestrated process which is initiated by a formal "complaint", which includes several distinct "Causes of Action", together with a list of "remedies" and a "Prayer" for damages resulting from whatever misconduct is claimed.  In response, Defendants file a formal "answer", usually denying all misconduct and perhaps adding a few "affirmative defenses" to the mix.  By the time the case gets to mediation, it is usually less well-defined.

     Between the initial filing and the mediation hearing, both sides have engaged in both formal and informal discovery.  Both sides have felt the discomfort and stress of both the litigation and the attendant expenses of bringing or defending a lawsuit.  Both sides have necessarily had to evaluate both their realistic chances of success and the broad range of damages that may be available.  Each participant has had the chance to gauge his/her opponent and their counsel.  In short, by the time of mediation, there may be much more on the agenda than just monetary damages.

     For example, last week I mediated a medical malpractice case in which the Doctor really wanted a chance to explain the medicine to me and, failing that, to a jury.  He was quite confident that a jury would understand that he bore no liability, and willing to pay his lawyer to get what he considered to be "Justice" at trial.  This week, I'll mediate an employment dispute where a teacher was terminated from a religious school.  The religious leader wants to explain the school's decision, and I have faith that he can do that better than a jury would.  Before we can discuss monetary damages, I think it will be critical to both parties to have an explanation delivered in a way that a religious leader can do with sincerity, truth and clarity.

     This is not a blog post about non-monetary damages as a substitute for money.  It is about honoring the purpose and objectives of each disputant before discussing damages.  It is, in my practice, the exception rather than the rule that the lawsuit is "only about the money".  It's worth exploring the other aspects before making the assumption that the pleadings rule.