Making Lemonade

By: Andrew Y. Winston
Florida Supreme Court Certified Circuit Civil Mediator

We are all familiar with the saying, “when life gives you lemons, make lemonade.” Essentially, try to make the best out of a difficult situation. By the time most litigants get to mediation, discovery has largely been completed, positions have been crystallized and the parties are preparing for trial. However, this definitely does not mean both sides have full clarity and insight into the opposition’s strategy and risk-tolerance.

As an eternal optimist and mediator who truly enjoys mediation, I always hold out hope a settlement can ultimately be reached if everyone commits to the process and participates in good faith. When litigants attend mediation, the primary goal is to resolve (settle) the case and the Mediator’s role is to assist in this process. Many times, the efforts are successful and the case settles. Other times…IMPASSE.

Despite how it makes lawyers, mediators and litigants feel, “impasse” isn’t a dirty word. It also doesn’t have to mean the mediation was completely unsuccessful. The only thing it means is the parties were unable to arrive at a mutually agreeable resolution of their claim at that time. Many cases that impasse at mediation will settle before a verdict is returned, and information available while still attending mediation can help achieve that goal.

Emotions can run high at mediation, particularly when a party feels the other side isn’t giving the case a fair evaluation. Low offers (or high demands) can trigger participants to react intemperately, leading to ultimatums and “take it or leave it” offers. The next time you find yourself in that position, take a breath, slow down, and give some consideration to what can be gained aside from the questionable shock-value of storming out of mediation.

Make the most of the process—the sooner you leave, the less information and insight you’ll gain. Your mediator may be privy to information the opposition has shared, but not (yet) authorized disclosure. It could be information strategically held back to surprise you with at trial. Perhaps insight into how much the opposition is willing to pay or accept. Maybe the opposition has some misconceptions or just inaccurate information which is coloring their view of the case. If you impasse and leave prematurely, you may never find out what you don’t know. Hang in there with your mediator and let him or her help you make lemonade out of lemons.