Mediation Notes, October 2019

October 1, 2019

Mediation Lessons from Hollywood

by David W. Henry, Esq.

When I am the second mediator on a case, lawyers often tell me that the first mediation “went nowhere,” and it seemed from the outset the case had no chance of settling the first time. There are several reasons why mediations reach impasse. Sometimes it is a failure to join necessary parties (e.g., construction cases), failure to notify insurance carriers, lack of key decision-makers, “surprise” or “gotcha” tactics, and often a disparity of information, all of which I have addressed in prior articles.

One potential source of impasse is what I call the Bull Durham problem—someone goes into “Nuke LaLoosh” mode at the start of the session. In the 1988 movie, Nuke LaLoosh is the pitcher played by Tim Robbins who disregards the best interests of the team and the advice of the catcher (played by Kevin Kostner) by insisting straight away that he wants to “bring the heat” and “announce his presence with authority!” Kostner (Crash Davis) knows it is a bad idea, and as an experienced catcher, he knows how to reign in the rookie pitcher. Nuke demands to throw the fastball, shaking off the catcher’s signals. Crash lets LaLoosh throw the “high heat” but not before telegraphing the signal to the batter who immediately jacks the fastball out of the park. Only after the homerun and a visit to the mound by Crash Davis does Nuke decide to heed Crash’s signals.

We see this scenario in mediation from time to time—when one of the parties or attorneys throws “high heat” and engages in vituperative language, posturing, low-ball tactics or grossly exaggerated demands, and then storms off the mound (leaving joint session and retreating into private caucus), leaving the rest of us to wonder, what just happened and what do we do now?

Sometimes the lawyer or client thinks mediation confidentiality is some sort of safe haven where the lawyer can verbally abuse the other side or berate them. In Florida, verbal abuse does constitute unethical conduct and is not protected by the mediation privilege. This is not a steel cage match; you have real people who can leave when they want to, and they sometimes do. In these circumstances, the mediator has to take charge very quickly and quash the histrionics and showboating in order to make the day worthwhile. I have had to vicariously apologize for one side or the other in private caucus to keep the mediation afloat more than I care to. The problem is not unique to young lawyers, but they sometimes can be easily provoked and have a harder time parking their egos.

If you have unnecessarily or willfully embarrassed the other side in front of the judge or during some phase of the litigation, you might expect payback. Nuke LaLoosh may arrive to throw some high heat as a form of retribution for other things that have occurred before the mediation started. Blowing up a mediation is easy and dumb, but it does not prejudice your client’s position on the merits (which is why it can happen). The client suffers from the continued prospect of an unresolved dispute, but somehow that gets washed in the laundry of zealous advocacy.

Sometimes one side or the other wants to “send a message” by low-balling the money or making new demands that exceed anything that might have been anticipated. As a mediator, I can sometimes see this coming. Usually there is no position statement or phone call. At the eleventh hour one of the key players wants to appear by phone for no good reason and the case is not anywhere near being ready for trial, so there is time, so to speak, to horse around. Instead of lead trial counsel, I get a stand-in.

Sometimes an impasse has little to do with an honest disagreement over the value of the claim but flows from other external considerations that the lawyer has not well managed or even anticipated. Pre-mediation telephone calls are the mediator’s only tool for ferreting out extraneous problems and those who might disrupt the process.

Every mediator has encountered Nuke LaLoosh at some point in their career. My best defense against this problem is to make phone calls with the lawyers in advance to determine if I can read between the lines or pick up on language that suggests Nuke is heading for the mound. Position statements that include words like “frivolous” or “ridiculous” are also an indication that one side has a dismissive attitude. Before throwing high heat in mediation, take a look at the dugout and the stands and think about who is affected by your behavior on the mound.

_{The material in this newsletter has been prepared for our readers by David W. Henry, shareholder at Marshall Dennehey Warner Coleman & Goggin. The views of the author do not necessarily reflect the views and opinions of Marshall Dennehey Warner Coleman & Goggin, and the newsletter is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.}