I was in caucus with a plaintiff and his attorney who were intensely calculating alleged losses. This was about 2 or 3 exchanges into the mediation. It’s part of the sometimes cathartic experience of mediating – being able to finitely define and, thus, explain why someone chose to take the momentous step to sue. In fact, mediating without such an evaluation has unique challenges, so I consider it reasonable and useful – until someone gets stuck there.
To head that off, it helps to understand where that valuation may have its place, and where it may not be helpful.
Parties tend to get “unstuck” when I explain that mediation is really the opposite of litigation. Litigation is all about the past – what happened, how the law applies to that past-tense circumstance, and what may have been lost. On the other hand, mediation is about the present and immediate future. And the tools used in each approach can be just as different.
By moving this party’s focus from over his shoulder to what was in front of him, he was able to begin assessing negotiable opportunities that could impact his (and his family’s) quality of life now; move him forward.
In the end, the negotiation progressed and this party wound up achieving settlement along with a personally meaningful sense of closure.
