Mediator Tips
Dealing with Indefensible Positions

Leo Hura, a commercial mediator and volunteer at the Mid Pacific Mediation Center, has a suggestion about how to handle court cases where it is obvious one party does not have a case.

If you know that one party will obviously lose if they go back into the courtroom, it is useful to try to help that party realize the indefensibility of their position. As a mediated settlement is almost always better than a judgment, even cases like this should be mediated. Hura recommends using separate caucuses where you tell the party that is being unreasonable that not making an offer could be dangerous as they risk not getting anything at all if they go back to court. Hopefully, this will loosen them up a bit.

However, Hura says that this is not the primary purpose of the caucus. He believes that you should find the underlying interest as to their position and try to address that when you go back in. Perhaps the person doesn’t have the money necessary to pay the other party. If that is brought out, perhaps a payment plan could be made that fits both party’s economies.

This is especially important when mediating at court, where the mediations need to be quick to meet the schedule of the court.