Seemingly trivial matters can derail talks

At my law school, criminal procedure was taught by the assistant dean, a person who was a dead ringer for Jack Benny in both appearance and mannerisms. Like Benny, the dean was fond of jokes and was, overall, a very funny guy. We had one eager student in this class who had a bad habit of asking lots and lots of questions - and let's just politely say, not the smartest questions.

One day the subject was the legality of searches by drug-sniffing dogs. The dean described a case where the dog discovered drugs at an airport. The defense moved to suppress the evidence and the court granted the motion. Then he paused and said, "The dog appealed." As the laughter subsided, our questioning fellow student, with a perplexed look, raised his hand. One glance told you he was thinking something like, "How could the dog appeal?" The dean looked up, waved his arms and said to more laughter, "No, no, no. I'm only kidding, I'm only kidding."

I was thinking about this experience in the context of a recent mediation where the parties, formerly in a romantic relationship, were in a dispute about ownership of a single family home. At the very end of the mediation, after hours of discussion about how much the former girlfriend would pay the former boyfriend to buy out the boyfriend's claimed interest in the house, the former girlfriend raised the issue of the boyfriend's dog - who was residing in the house at the time of the mediation. She demanded as part of the settlement that the former boyfriend take custody of his dog. Happily, the boyfriend agreed and we settled the case. I was so tempted while preparing the memorandum of settlement for the parties to type in the words, "I hereby consent" and draw a little dog paw on the signature line. As yet, there has been no appeal from the dog.

On a more serious note, it is surprisingly often the case that a seemingly trivial matter can derail mediation at the 11th hour (not that dog custody was trivial in this particular case). Here are a few examples:

In a recent mediation involving a dispute between an owner and a contractor, where the plaintiff was represented by his second, or third, lawyer (I lost count), at the very end of the discussions the plaintiff remembered that one of the previous lawyers had an attorneys' lien for his fees. After another solid hour, including a telephone call to the former lawyer, we resolved it.

At the end of a full day of mediation in a real estate dispute that resulted in a settlement, and after I gave the parties my "standard" memorandum of settlement, the defense lawyer started handwriting an elaborate confidentiality provision - something that had never been raised during the mediation and something that the plaintiff vehemently opposed. Back to the table to debate that issue and reach agreement.

In another matter involving a real estate nondisclosure claim, at the very last part of the discussion about what the defendant would pay and what the plaintiff would accept, the plaintiff agreed to a number and then, a few minutes later, said, "I can't accept that amount of money - it's taxable, and my 'net number' would be too low." What followed were hours of efforts to find a way to resolve the issue.

In a business dispute between two partners where the parties came to the mediation hoping they could resolve some of their current disputes and arrive at a protocol for operating their business with less conflict in the future, the parties realized at the last minute they had made no provisions to resolve an argument over the development of a new product.

And, in a case involving a zoning issue where the dispute could only be resolved by obtaining consent from the zoning administrator, the parties agreed on a protocol and only then realized the process would require the consent of the owners of certain neighboring properties. It was most peculiar - this was an issue that should have been addressed at the outset of the mediation, not at the end.

These cases all illustrate the need to consider all of the important issues before the mediation starts. At the outset of mediation I always like to ask two questions: (1) What is the goal of this mediation? (2) What would a good settlement look like? If you are well prepared, you will have a list, perhaps short, perhaps long, that provides answers to both questions - but that list would include all (not just some) of the issues that must be resolved for the parties to fully settle their dispute.

Take a relatively simple dispute between an owner and a contractor where there is an action by the contractor to foreclose a mechanic's lien and a counter-claim by the owner for breach of contract or construction defects (a common scenario). The owner has two main goals: (1) get rid of the Mechanic's Lien; and (2) get money for the breach of contract or construction defects. The contractor also has two main goals: (1) get money from the owner; and (2) pay nothing to the owner on the cross-complaint. Our example sounds simple, but there may be other items on the agenda. Perhaps there is a pending refinance on the property. In that case, the owner may want the mechanic's lien released by a certain time (e.g., the day after the mediation). Or, the owner may have made a claim against the contractor's statutory bond and the contractor may need the owner to withdraw that claim immediately. Those are issues that need to be addressed early in the process because there might be procedural or other impediments that interfere with the parties' ability to meet those needs.

None of these potential issues are all that complicated, as long as they are put on the table clearly and early. A checklist prepared in advance of the mediation would ensure this happens.

So, the next time you are preparing for mediation, think about your goal, consider what a good settlement would look like, and prepare a list of all the issues that must be resolved. Provide that list to the mediator as part of your mediation brief to alert the mediator to the importance of resolving all the issues on the list during the mediation process. This small, but important effort could help you avoid having issues arise at the end of the proceedings that, dare I say it, become the tail that wags the dog.