Coffee Talk: What’s the most creative solution you’ve come up with in mediation?

In a business dispute involving two families from China, where defendant refused “on principle” (read loss of face and status) to pay any money to plaintiff, I was able to encourage defendant to make a substantial contribution to plaintiff’s favorite charity, for which defendant would receive a tax deduction. Think about “win-win!”

Malcolm Sher

Have the parties bring in their significant others, and find out what they think that party should or could be doing in six months time.

Tom Cain

As Mediator, I had about 15 people at a final impasse. I presented a mediator designed “Settlement Proposal.” Everyone voted by secret ballot on a small piece of legal paper, gave them to me in the ‘hat,’ with the understanding in advance that unless everyone voted YES,  the proposal was not to be adopted. It settled needless to say, to our amazement with all YES on the papers in the hat.

Marc Bouret, Bouret ADR & Mediation Firm

After engagement as mediator, securing commitment of the parties to attempt to resolve their estate dispute in mediation, reviewing briefs, conferring with all counsel and working all morning in joint session reviewing the case with the parties and reaching tentative agreement by mid afternoon on division of titled real and personal property, bank accounts and securities, we reached an impasse! The parties had agreed to cover the conference table with all of the jewelry and tangible personal property left by their parents, and to take turns filling separate boxes designated for each sibling. When almost all of the items had been removed from the table to the box of each sibling, they could not agree upon distribution of an exceptionally lovely piece of jewelry that their mom had had designed and produced by a local jeweler. We had reached an emotional impasse and all of our work toward resolution was about to be for naught. As I sat with the parties at the large conference table with a settlement close but about to blow up, I picked up the piece of jewelry in my hand and suddenly felt as if divinely inspired. I asked the parties: “Could this piece be duplicated?” It could, and the case then quickly resolved by satisfied siblings.

Joel Zebrack

I was asked to present a concept that would allow the United Arab Emirates’ Navy, Maritime Police, Coast Guard, Department of Transport and Customs and Immigration Agencies as well as the Abu Dhabi Tourism Authority to maintain the highest level of security while streamlining the entry process for foreign flagged vessels, crews and their guests so that they could visit the nation in order to attend the inaugural Etihad Airways Formula One Auto-racing Championship at the 5-star Yas Marina Circuit. I suggested that the Navy donate the use of one pier at its port facility closest to the sea-lanes in the Persian Gulf, and establish temporary offices on the pier for all other agencies so that visiting vessels could undergo “one-stop” clearance procedures that could be concluded within an hour or two as opposed to being held at the “quarantine” pier for days while each agency scheduled its inspections.

Fred Carr, Carr & Venner ADR

In family law we deal with highly charged emotional issues of support and custody. In my 20 years on the family law bench and one year in private practice, I have found that the key to successful outcomes is to know as much as you can about the case and the lawyers before the mediation, ask good questions that get to the real heart of the matter then help both parties better understand the other’s hopes and fears. Oh, a little something sweet to eat helps as well.

Commissioner Josanna Berkow (Ret.)

In a hotly disputed business dispute between two equally-stubborn business people, where the costs of defense were going to exceed any likely recovery but neither side would ever agree to pay money to the other, each side chose a charity and both contributed the same amount to the charity of the other’s choosing. Both sides were happy with writing a check to a charity as long as it was not to the other party. Everybody was happy and two local charities benefitted.

Robert A. Huddleston, Esq., Huddleston & Sipos Law Group LLP

Tell them to focus on the issues and the children; not on each other … and behave yourself.

Merritt Weisinger

I once presided at a mediation where there were six injured plaintiffs claiming against a total of only $30,000 in liability insurance. The settlement demands far exceeded the available policy. I prepared a “ballot” at the mediation and asked each of the claimants [with their lawyers] to vote by way of secret ballot as to how they thought the limited fund should be divided up among the claimants. Surprisingly, once they got that there was only $30,000 available and that no one would get anything unless all agreed to take a certain something, they voted and the results were very close to identical. We made a few minor adjustments to two of the claims and the whole thing was wrapped up in less than two hours!

David J. Samuelsen, Bennett, Samuelsen, Reynolds & Allard

I represented the Seller/builder in a construction defect case years back. The buyer of the single family home alleged numerous construction defects, including that a large Oak Tree, which was a landscape centerpiece to the house, had died due to the builder’s subs leaving concrete debris near the base of the tree. Ultimately, there were the “usual suspects” (seller/builder, subcontractors, real estate brokers, etc.) named in the case, totaling around 10 parties. My client was insured. We proceeded with settlement mediation after some substantial discovery, but instead of having all of the parties and their counsel attend the initial mediation conference, at a substantial expense, we only had the mediator, my clients, myself and the plaintiff (buyer) and plaintiff’s counsel. During the mediation we came to a consensus as to what the total settlement amount should be, and we agreed to that amount, subject to the condition that I could now approach all of the other parties, and get contributions so that we could “fund” the settlement amount on a basis that would be satisfactory to my client and his insurer. We were ultimately successful in getting all of the others to chip in their reasonable share and the case was resolved.

Peter Sproul, Mullen & Sproul LLP

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