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By Steven G. Mehta

It has been several months since I have last written, and I thought I would get back into writing.  Some of the reasons that haven’t written were vacation, burnout, family crises, busy life and practice, and other issues.   I also found that writing was important to me for my own education and self growth.   So therefore, I am now back.

The question I have is which came first the chicken or the egg?

It’s a question that has plagued man for centuries: Which came first, the chicken or the egg?

Well, scientists in England say they’ve found the answer: The chicken!

Researchers wrote in a recently published report that it all comes down to one protein – ovocledidin-17 – which helps in the formation of the egg’s hard shell.  This essential ingredient in the formation of the egg can only be produced inside a chicken, scientists from universities in Sheffield and Warwick concluded.

But what does this have to do with mediation?  Everything.  In mediation, often times both sides will start off with initial offers that are extreme.  Each side invariably states something to the effect that “the other side’s position is so unrealistic that mediation is not worth it.”  The other side responds, “Our position is such, because they won’t make a reasonable demand/offer.”  Well which one came first, the unreasonable demand or offer?  Probably both.  Each side reacts to each other and to what they perceive the other side will do.  So sometimes even though one side made an offer/demand, they are in fact reacting to what they percieve the other side might do.  Thus which came first, the chicken or the egg?

The other issue with the chicken and egg is the fact that you can debate that topic for a little while, but at some point the debate becomes meaningless and the parties need to be able to move beyond that debate otherwise the case may never settle.  Here are some thoughts as to how to move beyond that:

Ask the parties to change the style of negotiating.  Maybe change the way the offers are made such as going to hypothetical offers/demands or brackets.

Help the parties to understand that the chicken and egg discussion won’t change the nature of the settlement process.  Suggest that someone has to go first and since the next offer/demand is not your final, if the other side doesn’t respond back fairly, you can “put on the brakes.”

Let the parties know that you understand that they came here in good faith and that the other side did also, but both sides are afraid to commit.

Suggest that if the other side started at a billion, that such a number would not dramatically change what the value of the case.

Suggest that your side has an evaluation of the case, and just communicate offers/demands in light of that evaluation irrespective of what the other side does.

The key is that there needs to be some way to break the logjam.  As a mediator or party, you have to be able to give some basis for why the change in position will occur.  So long as you keep trying to find such a rationale, the process is working.

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By Steven G. Mehta

Recently I was reminded of the the old adage, “never judge a book by its cover.”  Prior to mediation, one of the parties to the mediation wrote that the case will never settle.  At that point the attorney for the party proceeded to write a compendium about why the case will never settle.

At some point after the third paragraph, I even had an inkling that the case might not settle and that my Friday afternoon might suddenly become clear.   However, after a short reverie of what I might do in the afternoon, I came back to my senses and went back to my internal mantra, “The case will settle!  They Just Don’t Know it Yet.”

During the mediation, it became surprisingly evident that the case would likely settle within a particular range.  I was pleasantly surprised at how fast it had gone.  This was party because of the fact that I had such low expectations of the outcome of the case.  In the end, it was like any other mediation that was successful.

The Moral of the Story:  Even if the parties say that the case will never settle, don’t believe it.  It may yet surprise you.  Moreover, as a party, you should be careful to put in a brief about your absolute conviction that the case won’t settle because you may create a self fulfilling prophecy.  Your words may just create  a mindset that is unbreakable.

By Steven G. Mehta

I never did a day’s work in my life. It was all fun.

Thomas A. Edison

I must say that when I used to try cases, I enjoyed doing the cases, but it was work.  Mediation, on the other hand, is fun.  I enjoy the work.  The hours are similar, and in some sense, there is at least as much stress as there is being a trial lawyer.  But time flies.  Unlike trial, where I lost 20 lbs.  I can have the same schedule in mediation and not lose the same weight.  I often tell people who want to change to mediation:  Don’t worry about the money.  If you love what you do, the money will come.

Many people enter mediation because they want to get out of law, or they want to retire, or they think it is glamorous.  Those aren’t reasons to change into mediation.  The reality is that it is hard to do mediation and make a living.  It is hard to get clients.  The vast majority of mediators don’t make money.  One statistic found that the average mediator made approximately $50,000.  That statistic also doesn’t reflect the many thousands of mediators that barely make any money.  This is not to discourage people who want to enter the profession.  Just to warn them that it is not an easy path; but then again, life isn’t always easy, and good things come to those who work for it.

By Steven G. Mehta

I thought you might like to see the presentation that I did before the Santa Clarita Bar Association on ethics and social media.


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