Thursday, July 3, 2014

Preparing for the Unexpected




On this eve of American Independence Day, I am reminded that in mediation, we always need to be prepared for the unexpected.  Yesterday, fireworks nearly erupted after a full day's mediation when, as the Defense lawyer began drafting the settlement agreement, his client raised (for the very first time) that he would be unable to pay any of the negotiated sum until after the Christmas holiday brought much needed revenue back into his business.  While this made for a colorful backdrop to the easy negotiations that had transpired up until that moment, it also threatened to derail the entire process.  At times like these, I find the best approach is to take a few steps away from the "fire" and pivot towards giving some space for creative solutions.  In this case, the lawyer and I were able to analyze that this "debt" would take priority over others if the Plaintiff's counsel went to trial and got an adverse verdict. Periodic payments made to Plaintiff would be roughly equivalent to the monthly invoices that the Defense counsel would be sending in the same period of time.  At the same time, I tipped off the Plaintiff that there was "an issue" about how soon payments could be made--suggesting he may have to wait until year end.  That way, when Defendant figured out how he could make the full payments within 90 days, it didn't seem quite so shocking and the deal was done.  Like fireworks in the night's sky, some big, scary, fiery events will come out with a boom and then fizzle into the air again.
How do you handle the late-day fire works and surprises that come up when clients or lawyers erupt unexpectedly?
Wishing you all a wonderful, safe and sane 4th of July!