The obsessive-compulsive approach to mediation

Those of you who have read my prior musings on mediation know that I like cars. I like, or at least appreciate, just about every kind of car - classics, muscle cars, sports cars, hot rods, street rods, resto-mods (muscle cars that have been restored with modern components) and custom cars. Lots of enthusiasts across the country (in fact, around the world), build hot rods. Some are amateur efforts, some more professional. But in the world of hot rods, there are two nationally recognized awards given every year to builders of truly incredible vehicles: the Ridler Award at the Detroit Autorama and the AMBR (America's Most Beautiful Roadster) award here in California. The cars that win these awards are the result of what can only be described as a fanatically obsessive-compulsive effort at design and fabrication, involving thousands of hours of labor and hundreds of thousands of dollars in expense. The level of detail in both design and fabrication is nothing short of astounding. Every single component, every nut and bolt, must be absolutely perfect in concept and execution. If it's not, that car won't even come close to winning.

What does this have to do with mediation? Some recent experiences in mediation have made me reflect that perhaps there are some lessons to be learned from the approach that the winners of the Ridler and AMBR awards bring to the process. Before explaining my reasoning, let me give you some idea of what that process is. First, when these experienced builders set out to win one of these awards (which can be a years-long effort), they start with a goal. The goal is simple, yet at the same time complex: win the award by building a car that is better conceived, better designed, and better executed than the competition. With that goal in mind, the next step is to create a plan of action. The plan involves the design and fabrication of the vehicle. To implement this plan, the builder first finds a designer to develop an overall design for the project. The design involves an overall design concept and hundreds, probably thousands, of details.

Once there is a design in place, the builder must assemble an entire team of individuals: fabricators of items like the frame, the suspension components, and the body panels, as well as engine builders, upholsterers, painters, and various other experts in such diverse fields as wiring, brakes, wheels and tires. The efforts of all of these individuals must be coordinated, in much the same way that a general contractor coordinates the work of various subcontractors so that the proper sequence is scheduled to allow a smooth flow of work, without overlaps or conflicts. And, because these cars are built from scratch (or completely rebuilt when you start with an existing vehicle of some kind) there are unexpected issues and problems that must be overcome as everyone works toward the final product. Throughout, there must be intense, almost maniacal, attention to detail and an absolute commitment to achieving total perfection in every aspect of a project of almost unbelievable complexity. In short, it takes vision, work, dedication, focus and commitment. It also helps if you have a large amount of cash.

There are many similarities between the approach described above and the approach a good litigator brings to a lawsuit. A good litigator also starts with a goal, which is both simple and complex: to win the lawsuit or settle on favorable terms, and a good litigator creates a plan to accomplish that goal. That plan, like the plan of action to build the car, has a number of specific elements and involves the efforts of other people, such as experts and third parties. The implementation of that plan also requires coordination, scheduling and attention to detail. And, the litigation plan often in fact these days, nearly always, involves mediation as a means of achieving the plan objective of a favorable settlement. In other words, the plan involves the idea of succeeding at mediation.

What's the mediation lesson that can be learned from the approach of the award-winning car builders? I think it's the "extra mile" concept, or as Lexus used to say in its ads: "The Relentless Pursuit of Perfection." To win either of the awards, the car builders have to go the extra mile (to be more accurate, several thousand extra miles). Conversely, they can't throw something together, pick up a can of spray paint from Pep Boys, and expect to compete. To succeed in mediation, you have to go the extra mile as well. And, in much the same way as the last-minute, thrown together "junk rod" isn't going to win any prizes or impress anyone, such an approach to mediation will be equally unsuccessful.

Let me give you some examples of what happens when you go the extra mile and what happens when you stop short:

In a recent mediation, there was a major issue involving standing. The issue could not be resolved without input from a lawyer who had drafted some of the original documents in the transaction. The defense lawyer, through substantial and determined efforts, was able to locate the prior lawyer (who had retired from practice and was very hard to find), and learned from that lawyer the central fact that resolved the standing issue. At the mediation, when this essential fact was disclosed to the plaintiff, the plaintiff recognized that a summary judgment on the standing issue was inevitable and the case settled within minutes of the information being put on the table. A case that might have consumed hundreds of thousands in defense costs was resolved with no settlement payment from the defense and well before any substantial amount of money had been spent to defend the case on the merits.

In a construction case where the owner was alleging that the contractor had delayed the completion of the project, the contractor's lawyer sifted through thousands of emails and project documents, including payment records, and produced a color-coded bar chart showing the exact number of delay days caused by the acts of the owner, the project architect, and from unforeseen circumstances that were not the contractor's responsibility. It took an extraordinary amount of work and determination to prepare this material. The owner was unable to challenge this evidence, which had the effect of reducing the owner's claim of delay by more than 85 percent. The case settled at the mediation for an amount all the parties felt was a fair reflection of the actual contractor-caused delay, which they were able to determine through the detailed and reliable presentation prepared by counsel.

The other side of this coin is equally illustrative. In a recent business dispute, I received a lengthy, rambling and difficult to follow brief on the morning of the mediation. I read it, although I had very little time to absorb the information, a task that was made more difficult by the fact that the brief was poorly organized, light on facts and long on arguments. Worse, and perhaps more importantly, there was a typo in the very first word of the brief. This was followed by more typos on virtually every page of the brief. If the goal was to establish credibility with the mediator, that effort could be analogized to showing up at the Autorama with a car that had the headlights attached with duct tape. The person entering that car shouldn't be surprised if nobody was impressed. Not surprisingly, no mediator reading that brief would be impressed nor inclined to give much credibility to the lawyer who authored the brief.

A similar example occurred in a recent case where the central issue was the recovery of attorney fees. Neither counsel knew whether they could recover fees even if they were to prevail. This was not exactly an award-winning strategy and the failure to consider the outcome on this critical issue kept the case from settling at the mediation.

I could give you many similar examples where counsel fail to take into consideration basic, let alone sophisticated, issues in mediation, such as having decision-makers present, or discussing risks in an intelligent way well before the mediation to set the stage for a resolution, or even having a grasp of the basic facts and law of the case. It's much like expecting a good result at the Ridler competition when you haven't even completed a basic car, let alone the sensational car that would be necessary to win.

I have one last thought about this car-building analogy. In a recent article in California Lawyer magazine, I wrote about the concept of "professional level" mediation - the idea that lawyers should treat the mediation process with the same respect which they give all the other components of the litigation process. They should have a goal, a plan, and the commitment to implement that plan as professionally as possible. In short, if they expect to "win" at mediation, they should approach the mediation process in the same way that the builders approach the construction of their show cars when they set out to win these coveted awards. Although only one person each year out of many candidates wins these awards, everyone who makes this effort in mediation can succeed.