Tips for Handling the Unwilling Defendant

While there have always been unwilling defendants who find themselves at mediation, whether voluntarily or involuntarily, this seems to be happening more often now. While we can debate why this may be happening, it is a reality for which a mediator should be prepared as with any other scenario. First, some clarification. Most defendants aren’t unwilling to settle, they are simply unwilling to pay what the plaintiff wants or even what they believe the settlement value to be. So, let’s define the unwilling defendant as one who doesn’t want to offer anything or doesn’t want to offer anything near their settlement evaluation.

As you know, preparation is key for successful negotiations and mediations, both for the parties and for the mediator. If you are going to be dealing with an unwilling defendant, it’s best to know it ahead of time. If you are having pre-mediation telephone conferences with the attorneys, hopefully, you will learn of this potential problem. The question becomes whether the proceed with the mediation. If the mediation is court-ordered, you might not be so dismissive of the “initial” session. If not, perhaps you should explore a little deeper how effective getting together may actually be. One of the beauties of the pandemic is the relative ease in scheduling a Zoom or virtual initial session. If it isn’t going to be productive, this will be less disruptive to everyone. If it turns out to be productive, you can either proceed via Zoom or make plans to continue the mediation/negotiations at a follow-up session.

Your listening skills will be most important when facing this dilemma. While you don’t want to waste anyone’s time unnecessarily, being too quick to pull the trigger and terminate the mediation may leave unaddressed avenues of resolution. What does that look like? Asking questions. “I understand that you are not willing to offer [anything or anything more], but what different facts or circumstances might change your opinion?” Or a simple, “Why?” If those don’t work, try hypotheticals. “What if you learned that the plaintiff ____________?” Or, “What if as settlement looked different than what you have proposed?”

But, if becomes pretty clear to you that further settlement efforts at that time will not be successful, pull the trigger. If you want any chance of helping the parties negotiate in the future, being willing to halt the process before anyone is completely disenfranchised is important. After all, the parties should be looking to you as a guardian of the process. A process that is efficient and productive. If one or more of the parties is an impediment to a “reasonable” resolution, then so be it. Model the successful blacksmith -- don’t try to pound them into shape when they are warmed enough to the idea.

Once the parties have clearly reached an impenetrable, entrenched impasse, don’t slam the door on future negotiations and don’t let them either. Set a time to follow up with the parties before they leave. Maybe that time is dictated by the occurrence of some event, such as a ruling on a motion for summary judgment or a decision in a companion case, or a coverage decision. Tell them that you will follow up and then make plans to do so. Don’t be too quick to fire off a report or letter to the court that says further efforts at settlement will not be successful unless you are sure that is the case. It might be a self-fulfilling prophesy.