Getting To The Finish Line: Effective Closing Techniques For Settling Disputes Through Mediation

Wednesday, August 1, 2007 - 01:00

John E. Osborn P.C.'s law practice concentrates in complex construction and environmental litigation. The firm's practice focuses on the representation of real estate owners in the capital planning process and includes preparation of the design and construction contracts, troubleshooting during the project, project close out and ensuing litigation, arbitration or mediation at project completion.

Our intricate knowledge of the design profession and the construction and real estate industries has gone a long way in helping us settle disputes early and cost effectively. Mediation has led to resolution of construction and environmental disputes on a wide range of cases for universities, school districts, hotels, restaurants and commercial and residential real estate developers.

According to John Osborn, "a depth of experience and knowledge in trying cases, sophisticated legal research, negotiating construction and design contracts, and troubleshooting during projects allows us to get closure, almost without fail. Mediation really works!"

"In June 2007, I attended a three-day symposium at the Pepperdine School of Law, Straus Institute for Dispute Resolution, in Malibu, California, 'Mediating Complex Construction Disputes,' which I highly recommend," says John Osborn. "The symposium was attended by experienced litigators, general counsel, judges and a few non-attorney mediators, and it was taught by Hon. Victoria Chaney, a judge serving on the Los Angeles Superior Court, with a great deal of mediation and settlement experience, George D. Calkins, Partner at the law firm of Cox, Castle & Nicholson LLP, an experienced attorney who now acts full time as a mediator and Joel B. Castro who teaches at the UCLA Law School and practices law in Los Angeles, specializing in construction defect litigation."

"The reason the symposium was so valuable," Mr. Osbone commented, "is that, although the subject matter was construction law, the 'lessons learned' were broader as they related to practical techniques to reach closure in any type of mediation."

"What it boils down to is that the skilled mediator, through experience and learned intuition, understands that there is more to a conflict than meets the eye. Fortunately, mediation, by its very definition, is a process that - unlike litigation-makes room for dynamic and movable parameters," observes Clare Connaughton. "Hidden agendas, heightened emotions, concern for reputation in the business community and similar issues are given time and respect in the mediation process. A 'trained' mediator 'hears' the not so obvious issues and recognizes if and when their import should be addressed."

John Osborn added, "Clare and I recognize that both the dynamics and 'creativity' of the mediation process really work, and our experience places us in a unique position as mediators to take miserable, contentious and expensive cases and help settle them. We have lived through these types of trials ourselves and have both achieved our share of excellent trial results. What we both know is that our clients have been most satisfied when a mediated solution is reached. Mediation meets the basic needs of the parties to be heard and to reach resolution on the merits, without 'breaking the bank' on the cost of litigation."

The following are some of the points which so highly commend mediation:

1. The Bottom Line is "How Do We Get the Process Finished?"

How do we resolve the conflict so that the parties can return to their work, their business projects, and their lives? Mediation goes one step further and asks: how can the parties draft a settlement that truly addresses all of their critical concerns?

2. Paying Attention to What Really Matters to the Parties:

The trained mediator understands that what lies beneath the surface of a dispute - what is often called "positional bargaining" - is often as important, if not more so, than what each side demands at the outset of the process. The unspoken is often what fuels the conflict and creates stalemates. Ignoring what may first appear to be a tangential matter is often a recipe for failure of the dispute resolution process.

3. Avoiding Splitting the Baby In Half:

One of the chief complaints about adjudicated resolutions (including arbitration awards and court orders) is the practice of "splitting the baby in half." Neither side wins or loses outright. Both sides get something, or at least a partial victory, so the theory goes, so the outcome must be a fair one. However, what is known is that many of the "50/50" resolutions begin to unravel over the short term, and the discord and conflict that gave rise to the original problem begins to resurface.

4. In Mediation, the Parties, Not Third Parties, Authored the Terms of the Resolution:

When parties settle a dispute through mediation, it is precisely because they themselves - and not a third party (judge, arbitrator or special referee, etc.) - have negotiated and authored those terms. The mediator is skilled at the "process" level, is trained to promote negotiations, and, with well placed (and well constructed) questions, can guide the parties out of a stalemate and into collaboration. The mediator is facilitator, evaluator and voice of reason. The mediator's finely tuned ear listens for the not-so-obvious - the stakes, the worries, the disappointments, the sense of justice - the needs and interests that support the conflict itself. While so much of this material may not necessarily be out on the table, conflicts that are particularly entrenched are often driven by the unspoken points.

5. In Mediation, It Can Be Assured that a Risk/Reward Analysis is Made:

The likelihood that the mediation process will "finish" with a settlement is subject to many variables, as is the litigated case. When it comes down to it, what is the impetus for settlement? Have the parties conducted a risk/reward analysis? The cost of litigation is no surprise, but the depth of the risk usually is. If the parties are very competitive (i.e willing to do and spend whatever it takes), the possibility of an unfavorable court decision falls on deaf ears. Where one (or both) parties have emotional stakes, ego concerns, or power issues, the willingness to negotiate is weak, to say the least. In mediation, the mediator can assure that the parties develop a risk/reward analysis as the mediator can facilitate each of the parties in developing this analysis.

6. Mediators Can Bring Out "Business" Factors Which Commend Settlement:

Remarkably, mediation works toward collaboration; it is simply the nature of the process. In this context, the parties can openly consider, with the encouragement of the mediator, the following: the value of doing business with the adversary in the future; the value of avoiding adverse publicity of an unfavorable court or arbitration decision, or the risk of avoiding release of confidential information through the discovery process. In mediation, the mediator can assure that the parties develop a risk/reward analysis by facilitating a detailed discussion of those risks and rewards for both sides of the dispute.

7. Mediators Are Attuned to Draw In Decision Makers:

While the courts often do not have the time to work on bringing the decision makers together, mediators are very effective and willing to put a lot of work into getting the right parties into the room or calling them on the phone - directly. The mediator may even reach out to an influential community figure to get help toward the settlement.

8. Suggestion of Settlement Range:

The mediator can suggest a settlement range to get the process started. It often works.

9. The Mediator Can Suggest The Format of the Information Needed to Reach Settlement:

Quite often, the parties fall short with documenting their position - especially when the insurance company or institutional defendant requires a detailed report, photographs and documentary backup. The mediator can suggest what is needed and "smoke out" whether the back up exists.

10. Evaluative Mediations Often Convince the Parties to Be More Flexible:

Experienced litigators or judges who have become mediators have a lot to offer, as they can offer precision and experience on key issues which facilitate the parties in critically evaluating their positions thereby achieving settlement.

Conclusion

Mediation, unlike any other dispute resolution process, contemplates these and other scenarios. It is an art and a science, requiring both the right and left brain. The mediator recognizes and reveres the full menu of needs and interests that are part of the fabric of human conflict. It is a process that provides the setting and structure within which the parties are able to design their own settlement agreements. These dynamics increase the odds considerably that the parties will participate and ultimately resolve their issues: in the end, a settlement agreement authored by the parties will be taken to the finish line.

John E. Osborn is a partner in John E. Osborn P.C. The firm's practice concentrates in the representation of owners of large real estate on construction and environmental law matters, including dispute resolution and trouble shooting during projects and litigation, arbitration, and mediation after project completion. Clare B. Connaughton is Of Counsel to John E. Osborn P.C., and is an experienced business and litigation attorney with over 20 years of experience resolving disputes. She serves as a mediator and provides conflict resolution and mediation training throughout the United States and internationally, in Latin America and Europe.

Please email the authors at josborn@osbornlaw.com or cconnaughton@osbornlaw.com with questions about this article.