Escape the Tunnel Vision and Settle Faster

All the necessary parties had gathered for an in-person mediation. But one side said we could not proceed.

“I have just been presented with an expert’s report I have never seen before. I have to depose this expert and probably get my own expert. Then opposing counsel will want to depose my expert. We can’t talk about settlement for months.” As you might expect, a bit of pandemonium ensued.

“Let’s assume this”, I said. “You will secure an expert at some expense. Your expert will say essentially the opposite of what is stated in this report. In deposition, both experts will staunchly defend their opinions. How about if we try to settle today with those assumptions and without the added expense and delay? We’re all here now. If we are unsuccessful in resolving the matter, you can move ahead as you see fit at that time.” Everyone agreed to proceed with the mediation.

Initially, the parties had tunnel vision. Given the procedural status, they fell back on the tactics they had always followed. Our discussion exposed the choice to waste the time, expense, and effort that had gone into convening the mediation versus an unlikely improvement in the parties’ bargaining positions plus added expense and delay for both sides. Considering those choices, the best path was to try for resolution.

After a few hours, the parties agreed to settle.