About a year ago, I was requested to mediate a case that was on appeal. The parties were a real estate agent (“agent”) and the real estate company (“company”) for whom the agent worked. The company had made cash advances to the agent for which the agent had signed promissory notes. When the agent terminated her employment with the company, she still owed the money.
 

      Pursuant to the terms of the agreement, the company sent the claim for collection. When that proved unsuccessful, the company filed a petition for binding arbitration.
 

      During the arbitration proceedings, the agent contended, among other things, by way of a counter-claim that she had been denied one or more commissions lawfully due to her, had been sexually harassed and that during the collection process, the company had violated federal law by reporting to the credit agencies that the debt was valid rather than disputed.
     

        The arbitrator found for the company in all respects. The company then had the petition confirmed by the trial court. The amount of the award against the agent was approximately $80,000.
 

      The agent filed for an appeal from the judgment confirming the arbitration award against her.
     

       At this point, the parties agreed to mediate the matter, and the appellate court sent the matter to me for mediation.
 

      The mediation date was set; the parties submitted their briefs which I reviewed. I also spoke with counsel to learn more about the matter.
     

       On the morning of the mediation, (approximately two hours prior to its start), I received an e-mail from the office of the attorney for the agent; the agent could not make it as she was sick. she had been to a doctor and was under doctor’s “orders” not to do anything stressful for a week or more.
     

      Needless to say, subsequent attempts to reschedule this mediation were futile. Reading between the lines, I gathered that the agent did not really want to attend the mediation and confront the issues. Evidently (and as I was told) she had done this with other hearings in this matter; she was  stalling and delaying to avoid “dealing” with things.
 

      So. . .the appeal proceeded along. I recently received a copy of the unpublished appellate decision. The agent lost. The appellate court confirmed the arbitration award, finding no error.
     

      To stay the enforcement of this judgment in California, the agent had to post a bond of one-and- a half times the judgment or, approximately $120,000.
 

      As a result of the appellate decision, the agent now faces an adverse judgment of approximately $80,000 plus approximately $12,000 in accrued post-judgment interest (at 10% per year) plus the costs of the appeal and the attorneys’ fees of not only her own attorney but those of the company’s as well since it was the prevailing party. And to collect (once the matter is remitted to the trial court), the company simply has to file a motion in the trial court to be paid from the appeal bond.
 

      Why do I entitle this blog “Settlement Is Always Better?” Because, if the agent had been willing to attend mediation and confront the issues, in all likelihood, the company would have been flexible in the amount it would have accepted in settlement and in the payment terms. It probably would have agreed to accept less than the approximately $80,000 due and to allow the agent to pay it over a period of time. In short, the agent could have resolved this matter for a lot less money, in a lot less time and with a lot less anxiety, heartache and angst. (She, also would not have an adverse judgment appearing on her credit report).
 

      While we all have demons that we do not like to face and at times, avoid facing, in the long run, it is better and often cheaper to face them sooner rather than later. It is usually less costly and more satisfying to participate in the resolution of our own disputes rather than to avoid and delay, thereby allowing strangers (here, an appellate court) to make the decision for us.
     

       . . . Just something to think about.  
  

       More and more parties are using mediation (which is nothing more than a negotiated resolution ) to resolve their lawsuits.  Perhaps, the following explains why.
     

        In late April 2008, the U.S. Chamber Institute for Legal Reform published its Lawsuit Climate – 2008 in which it ranks the states’ liability systems. The survey conducted by Harris Interactive, Inc. polled 957 in-house general counsel, senior litigators and other senior attorneys “who are knowledgeable about litigation matters at companies with annual revenues of at least $100 million.” (Id.) The polling occurred by telephone between December 18, 2007 and March 19, 2008, with each conversation lasting about 23 minutes on average.
 

      As I live in Los Angeles County, California, the first thing I looked for was California’s ranking. It is ranked 44 out of 50. (It seems that in 2007, it ranked 45 and in 2006, it ranked 44). The five best states, respectively are: Delaware (#1); Nebraska (#2); Maine (#3); Indiana (#4); and Utah (#5). The five states below California (or worse than California) are: (Illinois (#46); Alabama (#47); Mississippi (#48); Louisiana (#49); and West Virginia (#50).
 

      In looking through this study, I discovered another statistic: the worst jurisdiction (i.e. specific city, or county courts) is Los Angeles County: 14% of the respondents thought this. Chicago (Cook County), Illinois came in second worst: 11% of the respondents thought this.
   

          As this statistic took me aback, I continued reading to find out why corporate attorneys thought Los Angeles County was so bad. The top 12 issues (with the percentage of respondents who cited the reason) broke down as follows:
     

      1. biased judgment – 20%;
      2. corrupt/unfair system – 5%;   
      3. unfair jury/judges – 5%;
      4. have read/seen a report on a case – 5%;
      5. unpredictable jury/judges - 4%;
      6. personal experience – 4%;
      7. incompetent jury/judges – 4%;
      8. overburdened with cases/too many cases – 4%;
      9. not enough knowledge/experience about other states – 4%;
     10. high jury awards – 3%;
     11. too liberal – 3%; and
     12. slow process – 3%.

       When the respondents were asked what should be the most important issues for state policy makers, the top five issues mentioned were: speeding up the trial process – 12%; reform of punitive damages – 10%; eliminate unnecessary lawsuits – 9%; tort reform issues in general 8% and high litigation costs – 5%.
   

         Indeed, in a separate study published by Public Opinion Strategies in April 2008, 88% of the respondents (executives at California businesses) stated that the number of frivolous lawsuits is a “serious problem,” while 45% believed frivolous lawsuits to be a “very serious problem.” Sixty-two percent believe that the number of frivolous lawsuits has increased in California in the last 3 – 5 years. Moreover, 50% of the respondents stated that they had made a business decision primarily to avoid a potential lawsuit. Ninety percent of the respondents stated that a threat of a lawsuit is a factor in making business decisions.
    

       While these two surveys are from the perspective of defendants and thus reflect a certain bias, their results still provide food for thought. Without doubt, the results are based on perceptions of either corporate attorneys (Lawsuit Climate - 2008) or business executives (Public Opinion Strategies). But, perceptions are “reality” and to these two sets of respondents, the litigation system in many states is not fair, not predictable, is over-burdened and is presided over by inexperienced judicial officers.
           

       . . . Which brings me back to mediation and the negotiated resolution of a lawsuit. The issues raised by the respondents provide all the more reason to resolve disputes through mediation. First and foremost, the parties, themselves, control not only the results, but the process. They need not worry about biased judgments, corrupt/unfair systems, unfair juries/judges, unpredictable juries/judges, incompetent judges and juries, overburdened judges, high jury awards, or a slow process.
 

           By agreeing to mediate their dispute, the parties are in total control: they select a neutral, the pace or timing of the process, the length of the process, the simplicity or complexity of the process and most importantly, the results. The parties control their own destiny – the outcome to their dispute. They can resolve it in any way that they want to do so, and not in a way dictated by some stranger – a judge or jury.
  

          So. . .the next time someone tells you they want to sue . . .think about this study. . .and the beauty of mediation.
       

           . . . Just something to think about.
 
 

      Why do we keep making the same mistake over and over again? Every time it happens, we tell ourselves that we should learn from our mistake and do it “correctly” the next time.
 

      While this logic seems rational, it is not borne out by research. A Live Science article posted on April 23, 2008 by Jeanna Bryner entitled “Why You Make The Same Mistake Twice,” explains that our failure to learn from our mistakes results from a phenomenon called “tip of the tongue” or TOT.
    

        “A tip-of-the tongue state occurs when your brain has accessed the correct word, but for some reason can’t retrieve the sound information for it. . . .”

        “The reason. . . is that the time spent not remembering causes our brain to reinforce that “mistake pathway.” (Id.)  (Emphasis original).

        Simply stated, when we try to remember a word, what we, in reality, are doing (once again) is going down the wrong pathway in our brain, or “error learning.”
    

         The article suggests that the way to correct “error learning” is to repeat the word – out loud or in our heads – once we find the right word and the next time, simply look it up or ask a colleague rather than allow our brain to go down the wrong path, yet another time.
     

       The article concludes that this phenomenon has been found in music and in sports. That is why we are told to practice music slowly – so as not to reinforce the mistakes.
       

       Could this phenomenon apply to negotiation and dispute resolution? There is no reason why it should not. How many times have you found yourself in the same situation or fact pattern but with different people involved? It is what makes you think that it is you. . . not them.
     

        In negotiation, it is always wise to take it slowly and not “rush” to the bottom line. Experts will say it is not “wise” to rush the process: that the parties must conduct the “negotiation dance” to obtain the desired result; if they rush it, they will not reach the desired end.
     

       This study provides a more simplistic reason for not rushing the negotiation dance: so that you won’t keep making the same mistake over and over and over again.
      

      . . . Just something to think about.
 

      The art of negotiation can present ethical dilemmas. As explained in the April 2008 (Vol. 11, No. 4) issue of Negotiation published by the Program on Negotiation at Harvard Law School, at times, negotiators  will make decisions that clash with their own ethics. Such clashes can arise in a myriad of situations.
 

      For example, a negotiator may attempt to create value at the expense of others. The scenario given describes two pharmaceutical companies settling a patent-infringement suit. As part of the out of court settlement, the defendant company agreed to delay marketing its generic drug while plaintiff agreed to pay defendant a large sum of money for unrelated products. The U.S. Federal Trade Commission filed a complaint against the two companies urging that plaintiff’s payment to defendant was for the purpose of keeping defendant’s generic product off the market. Although the Administrative Law Judge disagreed with this assessment, the Commission, itself, found that the two companies settled (i.e. created value) at the expense of potential consumers of the generic drug.
 

      A second example involves stereotyping some, thereby favoring others. While everyone wants to believe that he/she treats all others equally and favorably, the results of an online test – the Implicit Association Test at http://implicit.harvard.edu/implicit - will reveal that each of us have certain attitudes or biases toward race, gender and other traits. Thus, as much as a negotiator may think she is being “neutral,” the potential for bias and/or favoritism is there. It is something to be mindful about during each negotiation.
 

      A third example is when negotiators ignore conflicts of interest. “Psychological research shows that when decision makers have a motivation to interpret data in a certain way, they are incapable of being truly objective.” (Id. at 3). Conflicts of interest will most often exist when a person is negotiating as an agent for another. In such situations, the interests of the client and those of the agent (i.e., an attorney or real estate broker) will not be in perfect alignment. An example of this is the issue of attorneys’ fees in any litigation. During the mediation, the interest of the attorney on this issue often conflicts with reaching a

      The article then discusses ethics in terms of the behavior of others. It suggests that we should not overlook or forgive unethical behavior by others, because by doing so, we, implicitly, approve such behavior. For example, we should not overlook behavior that would harm us if exposed. The example given is the use of performance – enhancing drugs in Major League Baseball (“MLB”). For many years, the wide use of such drugs was an “open secret,” and never questioned by management or by the union. Why was it overlooked? According to research, “MLB leaders succumbed to motivational blindness, or the common tendency to overlook others’ ethical lapses when confronting the behavior would harm us. . . .” (Id. at 3). Think of the great single season homerun race between Mark McGwire and Sammy Sosa or of Barry Bonds’ chase for the all time homerun record. Each of these brought much attention and revenue to MLB. To confront the issue of steroid use could have jeopardized both. 
 

      Further, we should not excuse those who delegate unethical behavior. Examples are the Chinese factory owners who, to make greater profits, subcontracted out certain parts of their production for  pet food or toys which, ultimately, led to deadly pet food and lead-painted toys. Not only should the subcontractors be held responsible, but the factory owners should also be held culpable.
 

      The final example of an ethical lapse is judging by outcomes rather than by processes. That is, making the result more important than the process and employing the attitude that if the result did not harm anyone, then the fact that an illegal or unethical practice was used is of no moment. Referring to the above example of lead paint in toys, suppose the toys are sold and (1) harmed many small children, or alternatively, (2) harmed no children at all. Should the difference in result dictate our view of what the factory did to increase its profits? It should not.
 

       So. . .while everyone attends mediation with the hope of resolving the dispute, perhaps each of us should keep in mind that settlement should not be reached at the expense of ethics.
   

          . . .Just something to think about.    

      Every so often, I am told by a party and/or an attorney participating in a mediation that she/he must leave by a certain time; that is, she/he has only but so much time to negotiate. Sometimes, the party or attorney will tell me this at the start of the mediation; other times, she/he will tell me this in the later stages of the mediation.
 

      In response, I silently wonder if she/he is telling me the truth or using a negotiation tool that, hopefully, leads to resolution. As explained in this month’s edition of Negotiation (Vol. 11, No. 4, April 2008) published by the Program on Negotiation at Harvard Law School, many negotiators will set a deadline, as a strategic tool, to reach an agreement. Research on this topic revealed “. . .that negotiators who revealed their own deadlines to their counterparts achieve better outcomes than those who keep their deadline secret.” (Id. at 4). By disclosing the deadline, a party motivates the other party “to make quick concessions with the goal of reaching a deal.” (Id.) It can help each party to “avoid costly stalling tactics and conduct” negotiations more efficiently. (Id.)
 

      The author also notes that time deadlines should not be confused with mounting costs. For example, one party’s mounting attorney’s fees will not have the same effect on the opposing party as the fact that the mediation must terminate (for example) by 6:00 p.m. so that a party can catch a plane. The attorney’s fees issue is the concern of only one of the parties, not both of them.
    

         Finally, if a party does set a time deadline, it is not always wise to provide a reason or explanation for it, especially if the reason is a weak one. The example given is having to sell a car by a date certain, explaining that the seller is moving out of the country. Explaining the reason may actually work against a party’s best negotiated deal. In essence, in some situations, less is more.
       

      So. . .the next time you are at a mediation, and the other party advises she/he has a time deadline and must leave by a certain time, proceed with caution: is she/he telling you the truth or is she/he using it as a negotiation tool to reach resolution  more efficiently?
 

      . . . Just something to think about.    

        Most of the cases that I mediate are in litigation. They are lawsuits in which each party has hired an attorney to represent him/her zealously, if not, aggressively. Many of these attorneys approach litigation as they would war: take no prisoners, scorching the earth as they “fight” their way to victory!
 

      However, a recent Harvard study reveals that these attorneys and the parties they represent may gain a lot more by playing nice. That is, “nice guys do finish first.” (Id.)
 

      The Harvard study, published in the March 20, 2008 issue of Nature (Volume 452, No. 7185), involved a 100 Boston-area college students playing “a punishment-heavy version of the classic one-on-one brinksmanship game of prisoner’s dilemma.” (Id.):
   

         “Common game theory has held that punishment makes two equals cooperate. But when people compete in repeated games, punishment fails to deliver. . . .” (Id.)

       The study found that those who used punishment were the losers. “Those who escalate[d] the conflict very often wound up doomed.” (Id.)
     

        In contrast, those who turned the other cheek and continued to cooperate with a nasty opponent received more rewards.
 

      When considered in the context of a mediation, the results of this study make sense. The purpose of mediation is to reach a resolution that meets the needs and interests of all parties concerned. Mediators (including me) often take an integrative bargaining approach (i.e., win-win) in mediation rather than a distributive bargaining approach (i.e., win-lose). If the parties accept the former approach, they often find that the deal struck in settlement is more satisfying as it meets more of their needs and interests than a deal stuck using distributive bargaining (or a zero-sum game approach). In essence, by working with the opponent (rather than against the opponent) in a cooperative manner, both parties gain more.
     

       In my day-to-day life as a mediator, I have seen this cooperative approach work, over and over again, resulting in settlements that meet the parties’ needs and interests. I am now happy to learn that this everyday experience has been confirmed by academia and scientific study.
   

         . . . Just something to think about. 
 

        At a certain point in every mediation, the haggling over money starts. Inevitably, one party or the other will tell me that they do not want to make the first offer or demand because they do not want to appear “weak” or to bid against themselves.

        In response, I tell them that making the first offer or demand provides them with a golden opportunity: it allows them to set the playing field, to affect the expectations of the other party. Sometimes, the party will accept this wisdom; other times, they want to follow the “conventional wisdom” of letting the other side make the first offer or demand.
 

        In this month’s One Minute Negotiation Tips published on-line by the Los Angeles County Bar Association, Linda Bulmash explains the benefits of defying “conventional wisdom” and of making the first offer. She explains:
   

         “First offers act as an anchor point, drawing the other side into your suggested range. In fact, studies have shown that 85 percent of the time, first offers correlate with the final outcomes. And even if the first offer is not within a reasonable range, it still affects the negotiation’s outcome.”
    

        “For those of us who think we are hip to the game, savvy, and sophisticated, the impact of first offers shows that we are still suggestible. As proof of that theory, participants in a college study were asked to state their Social Security number before estimating the number of physicians in Manhattan.  They all picked numbers that correlated with and were close to their Social Security number.”
   

         “Before deciding whether to make the first offer, ask yourself:
  

           1.  What do I want to achieve by making this offer?

           2.  Do I have enough information to make this  

                offer?

           3.  How do I want to affect the other side’s   

                expectations?

           4.  How will this offer affect the other side’s

                expectations?

           5.  What kind of offers and counteroffers do I need

               to make to strategically move them closer to my

               bottom line?

           6.  Should my offer be firm or flexible?

           7.  How can I propose the offer in a way they can 

                accept?”
 

       . . . Just something to think about.

       So. . . you have decided to mediate your dispute. Now, you must select a “good” mediator. How do you find one and more importantly, how do you define a “good” mediator?
 

       Most people find a “good” mediator either through personal experience (i.e., previous mediations with a particular mediator) or through word of mouth or referral.
       

      The more important question is what do you (and everyone else) mean by “good”?
   

       Recently, the American Bar Association’s (ABA) Section of Dispute Resolution issued its Final Report of its Task Force on Improving the Quality of Mediation. This Task Force was formed in January 2006 “to investigate factors that define high quality mediation practice.” (Id. at 2). It investigated using a series of ten (10) focus group discussions in nine cities across the United States and Canada. The participants in these focus groups included outside counsel, in-house counsel, and non-attorneys in organizations “whose responsibilities included working for parties in mediations.” (Id. at 3). The Task Force also conducted focus sessions with experienced civil mediators. In addition, the Task Force collected more than 100 responses to questionnaires sent to mediation users and to mediators. It also conducted thirteen (13) telephone interviews with mediation participants.    
       

      The Task Force found that each different group of participants identified the same four (4) issues as important to mediation quality:
    

       “Preparation for mediation by the mediator, parties and counsel”
       

       “Case-by-case customization of the mediation process”
       

       “ “Analytical” assistance from the mediator”
    

       “ “Persistence” by the mediator.” (Id. at 3).

      With respect to preparation, many of the participants, “. . . identified preparation by the mediator, the parties, and the parties’ counsel as important for success in the mediation’s outcome. Many focus group participants mentioned liking pre-mediation discussions with the mediator, in part because the discussions prompt them to prepare themselves and their clients for mediation.” (Id. at 6). The survey respondents felt it was very important, if not essential, that the mediator know the file and read the documents: mediator preparation was essential. (Id. at 7).
     

      With respect to case-by-case customization of the mediation process, the participants noted that customization generally occurs during or as part of the preparation phase. (Id. at 12). “Customization is the element of preparation that involves planning a mediation process tailored to the needs of the parties and the dispute. . . . [T]he timing of the mediation, exchange of information before the session and whether to have opening statements, are all elements that can be customized to each dispute.” (Id.) Thus, the participants urged that mediators should not use a “cookie cutter” approach but rather be flexible in how they conduct the mediation process. (Id.)   
  

       The third consistent element involved “analytical” assistance from the mediator. (Id. at 14). The responses to the survey showed that the mediation participants believed the following from the mediator would be helpful: (1) ask pointed questions that raised issues; (2) give analysis of the case, including strengths and weaknesses; (3) make predictions about likely court results; (4) suggest possible ways to resolve issues; (5) recommend a specific settlement; and (6) apply some pressure to accept a specific solution. (Id. at 14).
    

       The last common factor is “persistence.” According to the participants, “persistence” included, “. . . trying to keep people at the table, trying to get the case settled by exerting some “pressure” and trying to get people back to the table after a mediation session fails to settle the case.” (Id. at 17). Ninety-three (93) percent of the mediation users believed that if a matter did not settle at mediation, but there was potential for settlement, then the mediator should follow-up with each side. Clearly, the mediation users wanted the mediator “to be actively engaged in helping them to settle their dispute.” (Id.). They do not want a “potted plant” mediator. They do not want mediators who end the session when the negotiations have gotten difficult – either emotionally or substantively. Rather, they want a mediator - who at such points – will be creative and optimistic that the “difficulties” (if not impasse) can be overcome and a resolution reached. (Id.).    
     

        So. . .in your quest to find a “good” mediator, consider these four (4) questions: (1) Does the mediator prepare for the mediation? (2) Does the mediator approach each mediation uniquely? (3) Does the mediator provide any analytical assistance? and (4) Is the mediator persistent?
     

      . . . Just something (actually quite a lot) to think about! 

       Emotions, emotions, emotions. . . . It seems that we cannot get away from them when we negotiate. In the latest edition of the Harvard Negotiation Newsletter (March 2008, Vol. 11, Number 3), the lead article asks “Will your emotions get the upper hand?” The author notes that “new research suggests that these different emotions [i.e. excitement, anger, and sadness] will predispose you to act and react in very different ways during the talks that follow, regardless of the relevance of these feelings to the issues at hand.” (Id. at 1)
  

       Evidently, research shows that “. . . whether we realize it or not, we often base our decisions on passing moods.” (Id.) In a 2004 study conducted by Harvard Kennedy School of Government Professor Jennifer Lerner, Deborah Small of the Wharton School of Business and George Lowenstein of Carnegie Mellon University, these researchers found a direct link between feelings and decision-making:
  

          “Prior to having participants engage in a buying-and selling task. . . the researchers primed some participants to feel disgust by showing them a graphic, disgusting scene from the movie Trainspotting. Other participants were shown a neutral clip from a nature film. Participants primed to feel disgust seem to feel an “urge to purge” during the financial task that followed. Relative to participants in the neutral condition, disgusted sellers reduced their selling prices and disgusted “choosers” (those choosing between a commodity and money) were less willing to acquire new items. . . .” (Id. at 2).

       In a similar experiment, participant sellers who were primed to become sad by first seeing the movie The Champ, reduced their prices; however, sad choosers were willing to pay more for an item. (Id.)
 

       Recognizing that emotions do, indeed, affect negotiations, the article suggests five (5) ways to avoid the consequences of emotional decision-making:
   

      1. Take a time out: Whenever you are feeling upset or angry during a negotiation (or mediation), take a break so you can let your emotions cool down and you can, once again, become more objective.

      2. Acknowledge your feelings: “Simply being aware that your mood is likely to affect your judgment is an important step. When you label your feelings, you begin to reduce their influence.” (Id. at 3).

      3. Reappraise rather than suppress:  Do not try to suppress emotions that crop up during a negotiation (or mediation). “. . . [O]ur emotions often offer valuable information about the negotiation.” (Id.) So, listen to them and try to figure out what is behind those emotions. . . where are they coming from and why!

      4. Institute accountability:  Make yourself accountable to others or to the mediator for the decisions you make. Require of yourself that you justify your decision to an impartial audience, e.g. the mediator.

      5. Present multiple proposals:  “The timing of the presentation of options influences our susceptibility to harmful emotions. . . . Specifically, we tend to act on our emotional preferences when evaluating options one at a time, but we become more capable of engaging in reasoned analysis when evaluating options jointly.” (Id. at 4). So, whenever possible, present multiple options rather than “take it or leave it” proposals.

      So, in your next mediation –which is nothing more than a facilitated negotiation – recognize that your emotions are very much present and use the tips above to avoid the consequences of negotiating with your heart rather than your head.                                                                         
    

        . . . Just something to think about.

      The other day (March 3, 2008, p. 6) the Los Angeles Daily Journal carried an article by Robert A. Steinberg (a mediator with ADR Services) entitled “Mediation Requires Deal Makers, Not Decision Makers.” His theme is that “mediation is a facilitated negotiation.” (Emphasis original.)  As Mr. Steinberg explains, “negotiations develop based on the skilled application of leverage. The quality of one’s legal case is one leverage point but hardly the only one and sometimes not even the dominate one.” Thus, as Mr. Steinberg notes, while arguing the law and facts at a mediation is the approach often taken by lawyers, it is not always the best approach to use at a mediation. Rather, the lawyer must consider the non-legal issues as well.
     

      A mediator is a facilitator, not a decider of fact and law. Thus, as hard as an attorney might try to “convince” the mediator that “justice” is on the side of her client, it is a futile exercise because quite often there is far more going on (or a lot more at stake) than just the facts and the law.
           

      To resolve cases, the parties must also focus on practicalities: their non-litigation or non-legal interests. How is the litigation affecting their business interests? Is it keeping them away from running the business and making money? Is it interfering with some potential event such as a merger, sale, an initial public offering, et cetera? How is the litigation affecting the tax and accounting aspects of the business? How will any potential settlement affect the parties financially – in terms of taxes and accounting? The parties must also consider “the time value of money, the costs of delay, time away from business or personal pursuits, opportunity costs, trial anxieties, risk aversions. . .” (Id.) and a whole host of non-legal considerations. Sometimes, these other themes, in reality, will predominate over the facts and the law.
 

           The job of the mediator is not to decide who is right and who is wrong: that is for a judge or jury at a trial. They are the ones who literally sit in judgment of the parties. Rather, the job of the mediator is to negotiate a settlement: to cause the parties to focus on much more than just the facts and the law; to get the parties to consider all of the non-legal “stuff” – the financial, physical, emotional, mental, business, et cetera aspects of the situation. For example, is the litigation taking its toll mentally, emotionally or physically on the parties? It is “stressing” them out? Is it causing disruptions in their marriage? Or relationships with others? How much longer do they want (or are able) to “put up” with such stressors?
    

        Only when the parties address all of these “other” issues will they then  be able to craft a deal that meets all of their needs and interests; not just the “legal” ones.
 

           . . . Just something to think about.