Mediation? No, Thank You.

Some time ago I showed up at a trial call. The opposing party was a pro per defendant.

I had fully prepared the case for trial. My trial exhibits included a copy of the signed contract along with copies of all of the invoices supporting my breach of contract claim. The defendant had no real defense. I fully expected to receive a favorable judgment.

I walked into the courtroom and saw the defendant seated in the gallery waiting for the case to be called. The judge was not yet on the bench and there were several other people in the gallery. Instead of sitting on the opposite side of the courtroom, I walked over and sat right next to this pro per defendant. I wouldn’t have done that in every case, but I knew this defendant was personable and I didn’t sense any tension or hostility from him.

The defendant seemed overwhelmed and uneasy. I greeted him warmly and smiled at him. On a personal basis, I liked him and I let it show. Trial is an inherently stressful situation, and there was no need to make this case any more stressful than it already was.

I told him that I was sorry we had to go through all of this (and I meant it). I then told him that I could settle for a small discount on the amount owed and then we could just go home. He said he didn’t have the money to pay what was owed.

I believed him. However, this wasn’t a huge case, and I suspected he might have enough credit available on a credit card to pay what was owed. I told him I could accept credit card charges on my phone. We could go out in the hall, he could authorize a charge on his credit card, and we could be done. He said he just couldn’t do it. I told him “no problem” and said that we could just go through the trial. I would win; I would record an abstract of judgment; it would create a lien on his real estate and when he sold or refinanced his real estate, the judgment lien would get paid. No muss, no fuss. He said OK.

Two mediators were present in the courtroom. One of them stood up and announced that they were available to mediate cases set for trial that day. They asked if any of the parties were interested in mediating.

My pro per defendant raised his hand. The mediator looked at me and asked if I’d like to mediate.

I’ve served as a mediator for several years. I regularly participate in mediation, both as a mediator and as legal counsel. I know mediation is a highly effective settlement tool.

I looked straight back at the mediator. I answered his question about submitting the case to mediation and said, “No, I don’t think so.” The mediator sat down.

Shortly afterward the court called our case and asked us to exchange exhibits. I handed the pro per defendant my stack of exhibits. I asked for his and he replied that he didn’t have any. I said, “No problem.” He looked even more overwhelmed. He then said, “How about you give me a small discount and we settle?” He proposed a settlement figure that was acceptable and I agreed to it. The judge had not yet taken the bench. I told the clerk that we wanted to step out in the hall and talk settlement. She said, “Great,” and out we went.

The defendant gave me his credit card number. I ran a charge on my phone and it was approved. We were done. No muss, no fuss.

We went back into the courtroom. I let the clerk know we were done, and the case was to be dismissed. It was all over in less than ten minutes.

So why did this all happen this way? And why did I turn down an opportunity to mediate when I serve as a mediator all the time and I know how effective mediation is?

I could see what was happening. My pro per defendant was willing to mediate, not because he wanted to seek a resolution, but because he was trying to avoid the inevitable. He was looking for a way out, and mediation seemed like his last best chance to find one. But I knew that mediation that day would just chew up a lot of time and could even cause us to miss our trial opportunity. If that happened we would have to come back for trial another day. My pro per defendant just had to face the music and be done with it. I wasn’t against settlement – I preferred it. But my goal wasn’t to mediate; my goal was to settle.

The take-away? Mediation is an incredibly effective settlement tool – when used properly, with skill, and in the right context. But there’s no value in rote submission to mediation if it’s not the right tool, in the right circumstance, at the right time.

The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter. Persons with legal issues or matters should consult competent legal counsel.

Robert B. Jacobs is a mediator and arbitrator in the San Francisco Bay Area. He mediates cases throughout California. Reach him at [email protected]

Copyright 2023 ROBERT B. JACOBS