March 10, 2021 admin 0 Comments

I was speaking to the parties after a small claims Settlement Conference the other day – the case did not settle. There had been a full exchange of documentation prior to the Conference, and the discussion during the Conference was very open, and the positions and interests of both sides were transparent and on the table. Each side was able to acknowledge and understand what the other was saying. That is usually a good sign that resolution can be achieved. When it came to making and responding to offers, however, each side then returned to being positional. “I’m right”. Those words, “I’m right”, are not the words that get cases settled. While paying lip service to the possibility that at a trial, someone would not be right, neither side would acknowledge that they could be that someone.

Neither side was prepared to depart from their 100% success position.

As a Settlement Conference judge, or as a Mediator, it is not my place to impose a solution on the parties. I may have a good sense about how a dispute might be decided, but unless the parties both want to hear my opinion, it can be dangerous to share it. Why? Even though a Mediator has no authority to make a decision, and even though they are likely less familiar with the nuances of all of the evidence than a trial judge might be after hours or days of testimony, the parties still see the Mediator as having some form of authority, even beyond their actual authority. The words of a Mediator can carry weight and influence a party’s decision-making at the Mediation and beyond. As such, a Mediator needs to be careful about what words are shared with the parties to a dispute.

So, at the end of that Settlement Conference, when I knew that the parties would not budge from their all or nothing positions, and we were out of time, I talked about bananas.

We’ve all been “that person” when shopping for bananas. We go to the grocery store and look at the bananas. Some of us are looking for green ones, not ripe at all, and if they are at all yellow, we walk away without buying any bananas. Some of us only want a fully ripe, completely yellow banana. A touch of green? We walk away. It’s all or nothing for many of us, yellow or green. We all look for that perfect level of ripeness (or lack of ripeness) and if we can’t get it, we don’t buy any bananas.

It’s a problem, especially if you’ve gone shopping specifically because you want bananas. And it’s the same problem at Mediation, when you’re looking for a resolution to your dispute. Too yellow? Too green? No resolution.

Not every dispute is ripe enough for resolution. Sometimes it will take a bit more time, for evidence to be fleshed out, for example, or even just for a party to get their head around a specific outcome. A settlement mindset often requires some additional ripening – some additional time.

I see many Mediations being scheduled prematurely, because there is a strong desire to get a case settled – the people want their bananas now. But that means they might have to settle for a banana that is much too green or too yellow for their liking. They would have to compromise beyond their comfort level, and that isn’t always going to happen when Mediation comes too early.

Timing of a Mediation is extremely important. I always feel bad when I am retained six months in advance of a Mediation date, and when the briefs come to me one week before the Mediation, it is clear that there is still much to be done to get the parties in a position where they are able to compromise within their comfort zone. Insurers may not have sufficient information to allow them to make that mental leap and agree that they should pay enough to satisfy a claimant’s demands. Undertakings from an Examination for Discovery may remain outstanding, or discoveries may not yet have been held. Lack of information being exchanged is generally the single most detrimental factor toward achieving a resolution at Mediation, simply because that lack of information results in one side or the other being unprepared to see the dispute from a different perspective.

Sometimes the bananas are just not ripe enough.

And sometimes they are too ripe. People have waited far too long to engage in these settlement discussions, and have gone too far down the road in one direction, and are hesitant to change that direction. They’ve spent too much money on litigation, for example, perhaps running up disproportionately high disbursements. They are afraid to lose face by compromising at this stage. Sometimes people wait until the bananas are so overly ripe that they are in danger of turning brown – they won’t end up with bananas at that point. Maybe all they can do is mash them up and make banana bread.

But that’s the answer. Bananas and Mediation are a lot like lemons. More fruit? Well, the saying goes that if life gives you lemons, make lemonade. Same with bananas. If they are too ripe, make banana bread. If they are not ripe enough, then perhaps patience is in order, and wait for them to ripen. Either way, whatever the hurdles may be, there are ways of making the best of those hurdles, and still getting a result.

I end every Mediation that does not result in a resolution the same way. I offer to make myself available down the road if the parties want to re-visit the discussion, perhaps when the time is more appropriate. When the bananas are more ripe. That kind of additional discussion is included in the price of Mediation, because I believe that sometimes patience is what is needed to let the bananas ripen, so to speak. Sometimes some additional preparatory work needs to be done by the parties. Not reaching a settlement on a single, specific day does not mean the parties will walk away empty-handed. It just might be that the time was not right.

So I talk about bananas. Green ones and yellow ones – they both have their place. And I let people know that there is no shame in banana bread either.

Leave a Reply:

Your email address will not be published. Required fields are marked *