Control your modulus of elasticity in mediation

The term "modulus of elasticity" refers to a mathematical method of determining the degree of "elastic deformation" of an object, e.g., how much an object will bend. Mathematically speaking, the greater the modulus of elasticity, the less elastic the object. I found this idea interesting for another reason: In college I pursued a brief and spectacularly unsuccessful career in pole vaulting - an exercise that taught me three things: (1) Pole vaulting is really, really difficult; (2) I was a lousy pole vaulter; and (3) a flexible pole is really strong. A flexible pole works by bending against the weight of the pole vaulter and as it bends against that weight and then recoils, it helps to push the pole vaulter up and over the bar. In other words, it is strong because it is flexible. I also learned that a pole that is insufficiently flexible simply sticks into the ground, throwing the vaulter backwards, or breaks, if too great a force is applied.

This interesting idea of the modulus of elasticity got me thinking about two recent mediations where I encountered parties and lawyers whose modulus of elasticity was so high that it would have challenged the skills of any mathematician to accurately calculate. In other words, they were so rigid in their thinking and approach that they could have been suffering from advanced rigor mortis. It prompted me to consider how this type of rigid thinking affects the mediation process.

What would we see if we applied some of these principles to the mediation process? If we were to use the pole vaulting analogy for a little longer, we could describe the lawsuit as the pole vaulter and the lawyer as the pole. In our analogy, the weight and momentum of the facts and law of the case comes hurtling down the short track, to be forced onto the pole at the "moment of truth." In pole vaulting, this occurs at the "plant," when the vaulter sticks the pole into a slot in the ground. The lawyer, playing the part of the pole in our example, must harness that energy in a flexible way and help vault the case over the bar.

In a trial, as in pole vaulting, there's enormous complexity and rarely a perfect application of force. And, as in pole vaulting, cases don't make it cleanly over the bar every time. In pole vaulting, the vaulter may be running too fast or too slow, or plant the pole into the slot too early or too late, or have unwanted and uncontrollable lateral force due to a less than ideal position of the hands and body.

In a trial, there are similar imperfections in what would otherwise be the perfect "plant" and forward motion of the case. These imperfections manifest themselves in the form of problems with testimony, evidence and unfavorable legal rulings. But most importantly, if the pole (the lawyer, in our example) lacks the flexibility to absorb the imperfections and spring back, the case not only won't sail cleanly over the bar toward a verdict, it will fall backward onto the track in a heap. Much the same happens in mediation, meaning that rigidity can thwart what would otherwise be a successful resolution.

I encounter this kind of rigid, inflexible thinking surprisingly often in mediation. I usually see it in two circumstances. First, in mediation briefs where one of the parties will tell me that they are "unconcerned" about a likely defense or likely claim of the opposing party. Second, at the in-person mediation where one party presents a new and important piece of evidence or seemingly compelling legal argument and the other party's response is some version of: "We don't care."

Typically, at the briefing stage, inflexible parties say things like: "We expect that the other party will raise the issue of the statute of limitations. We have no concern about this issue." The party making that statement might as well hold up a big neon sign that says: "We are not prepared to listen to any contrary facts, arguments or analysis, regardless of how compelling." In other words, we are so rigid in our thinking that no amount of discussion will make us change our minds. During the mediation, when seemingly significant new facts or legal theories are presented, the response is usually something like: "We aren't worried about that," or "That's not important," or "No judge will ever allow that evidence or that argument."

To better understand the danger of this rigid, inflexible approach, consider the issues in the greater context of risk. When a party takes the position that under no circumstances do the facts or legal arguments of the opposing party have any importance, that party is ignoring the very real risk that despite every effort to resist those facts or arguments, they might fail in that effort. Or, to use our pole vaulting analogy, it would be akin to believing that none of the difficulties inherent in every attempt to vault over the bar even exist, and that to an absolute certainty, the vault will inevitably succeed, e.g., that there is no risk of a misplaced plant, a slight twisting of the body position, or some other failure in the effort that causes the vaulter to knock the bar off the supports. You don't have to be a pole vaulter to recognize that not every effort to vault over the bar will be successful. Anyone who has ever watched the sport knows that there's always a risk that for some reason, despite the very best possible effort and lots of intense practice and planning, the vaulter won't make it over the bar. Similarly, every good trial attorney knows that not every trial will end in a favorable way. Thus, it's not a leap (sorry) to realize that taking the rigid, uncompromising approach to the reality of risk in the litigation process is not only illogical, it will likely lead to failure.

Contrast this with the benefits of a more flexible approach. What happens when lawyers and parties with a flexible approach are faced with challenges to their position? Here are two examples.

In a recent mediation the issue of attorney fees was preventing the case from settling. One party insisted that the contract proving for attorney fees was never signed by both parties. This party was adamant that even if the other party prevailed (which was the expected result), their inability to collect attorney fees reduced the settlement value of the case. After reaching what looked like an impasse on this issue, I asked the parties to explore a different approach - to recess the mediation for the purpose of both parties trying to resolve the issue of whether there was a fully executed contract. The adamant lawyer took a step back and realized the implications of the attorney fees provision and the need to resolve this issue (and the wisdom of being flexible in her approach). After much effort, a fully executed contract was finally located. We then had a second (and brief) mediation after the party resisting the settlement saw the signed contract. We sat down and "did the math" which showed that even if the opposing party obtained a small judgment, the magnitude of the exposure to the attorney fees compelled a resolution of the case at mediation.

In a second case where we were mediating prior to arbitration there was a statute of frauds issue that was preventing the parties from reaching a settlement. I suggested that instead of everyone "staking out their territory" on this issue, the parties instead stipulate to a "mini arbitration" on this one issue, to last no more than three hours, with an interim award from the arbitrator, with the understanding that after the arbitrator ruled, the case would settle for "x" dollars if the arbitrator ruled in one manner and "y" dollars if he ruled in a different manner. A few weeks later, after a minimum of time, effort and expense, the arbitrator issued his ruling and the case was resolved. The parties were flexible in their approach on this procedure because they realized that the statute of frauds issue was the linchpin to their dispute and that it would be wasteful to arbitrate all the issues when they could instead obtain a determination on this dispositive issue.

The next time that you feel yourself at mediation rigidly anchoring yourself to a position in the face of countervailing facts and arguments you might remember that in flexibility there is strength.

Robert S. Mann, a Daily Journal Top 50 neutral, mediates and arbitrates real estate, construction and business disputes at ADR Services Inc. He can be reached at rmann@adrservices.org.