All things considered, in mediation and settlement

What do you and I mean when we say “all things considered?”

The weather, we say, is good, “all things considered;” a new car, we say, isn’t bad, “all things considered;” a dinner, a movie, a vacation, a job, a new house, a day of the week, a month of the year, a year, a decade, an enemy, a friend, a family member, a city, a town, an old pair of shoes, all can be described with the words: “all things considered.”

But what do we really mean?

Do we mean “all things considered” when we say “all things considered?” No. We mean the opposite. When we say: nice day, week, husband, wife, daughter, son, pair of shoes, “all things considered,” we mean in spite of the weather, their criminal conviction, their tendency to lie, to tell the truth, to sell drugs, to buy shoes, or to hurt our feet. We mean to say all things not considered, and we mean to say we have considered those other things, too.

“All things considered” is a simple acknowledgment of the fact that life is not simple, that true perfection in life is nonexistent, that things might be better or worse for others, maybe most others, that things might be better for us, maybe a lot better, maybe a lot worse, but, given all of these irrefutable facts of which we acknowledge the absolute truth, we are accepting, no, pleased, no, thrilled, no, overjoyed with the current state of our life, the weather, this day, this pair of shoes, or whatever – all things considered – and we are looking forward to what tomorrow may bring.

Unless tomorrow brings a presidential election, an armed conflict overseas (whether or not we are a combatant), a lawsuit (in which we are a named party), a mediation conference (in which we may be required to acknowledge, as we already do in every other aspect of our lives, that certain facts take precedence over certain other facts), or any other circumstance in which we choose to pretend that all facts are created equal and, frankly, must all be considered.

“All things considered,” then, is a comfortable lie, a euphemism, that enables us to live our daily lives. We often hear or say words to the effect that: “if you think too long or too hard, consider all of the options, evaluate all of the consequences, then you will never get married, divorced, have children, go to college, drop out of college, get a new job, buy a new car, get a haircut or anything else.” But, we do get our hair cut, have children, change jobs, and basically live our daily lives because we understand that we cannot consider all things and accomplish anything.

Until we go to mediation. Then we make believe, or pretend to believe, or actually believe, that everything matters, and if not everything, then only those things that matter to the other party, or parties, do not matter to us, and vice versa. During mediation we forget the lie of “all things considered” that so well lubricated our lives before mediation and, will again after mediation ends. During mediation we require not only that all facts be considered, but also that all facts be demonstrated if not beyond any doubt, then beyond any reasonable doubt, and if any such fact can be so demonstrated to be true then, and only then, can such a fact be relegated to the pile of facts not relevant to the resolution of the matter in dispute.

Unless you are the mediator; if you are the mediator, then you are charged with achieving a settlement of the matter in dispute in the minds of the disputing parties on terms acceptable to the parties, all things considered. And the mediator means all things considered in the usual sense, not the literal sense, because the mediator knows from experience the truth of the statement that nothing can be settled if all things are considered.

All things considered, then, to the mediator means discovering from the parties through questioning, through listening, through divine guidance, or through any appropriate means necessary what things in fact and in truth matter to each of the parties. Once the parties’ truth is discovered, if it is discovered, then the mediator knows what things may be useful to any settlement and can attempt to help the parties find common ground on those things.

It can be and has been argued that a problem with mediation is that the parties’ truth is not the actual truth, that there is a problem with “deception” in mediation, that the problem is the parties are trying to fool the mediator, and the mediator is trying to fool the parties and the lawyers are trying to fool everybody, and there is, well, something just not right about all of that tomfoolery; whatever happened to “the whole truth and nothing but the truth?”

Whatever happened is that “the whole truth and nothing but the truth” doesn’t fit mediation. It fits litigation (somewhat), but it requires a Code of Evidence and a Code of Civil Procedure and the Rules of Court to make it fit, and it is very expensive and subject to appeal and takes a very, very, very long time. What happed is the realization that “all things considered” does not always mean “all things considered.” It sometimes means that some facts take precedence over others, and that some facts do not matter at all, today, at this time, in this context, to this settlement.

Settlement is defined as an adjustment of doubts and differences. If the mediator is unable to successfully discover from the parties those things, out of all things, to be considered relevant today, to this settlement, then the settlement track will be circular, and endless, and there will be no adjustment of doubts and differences, and the mediation will fail.

The parties will then be left with “the whole truth and nothing but the truth,” as an alternative, as an option. Maybe, all things considered, it is a better option. Maybe, all things considered, it is the only option. If a search for the whole truth and nothing but the truth is your quest, then perhaps you should seek it through litigation in the first place, because proof is not the goal of mediation. The parties in mediation already know the truth of the matter. They don’t require the proof of the matter.  Mediation is a quest for settlement, for an adjustment of the doubts and differences existing between parties, today, in this case, in a manner acceptable to all of the parties, nothing more, and nothing less, all things considered.

(Reposted from 2009.)

Not Bargaining With Syria

From Jack Goldsmith of LAWFARE:

United States Senators Joe Manchin (D-W.Va.) and Heidi Heitkamp (D-N.D.) are working on an alternative Syria resolution that provides:

If the Government of Syria does not sign the [Chemical Weapons] Convention within 45 [days] after the date of the enactment of this resolution, all elements of national power will be considered by the United States government.

In other words, our President has told Syria that the Unities States is going to bomb them because they used chemical weapons to kill civilians. And now our Senate is proposing to tell Syria that the United States will bomb them unless they sign a promise not to use chemical weapons.

Whatever these threats by our elected representatives are, they are not bargaining, and they fall far below the quality of service that we are entitled to expect from our leaders.

Continue reading about the Manchin/Heitcamp Syria Proposal and the Vienna Convention on Treaties.

All things considered, in mediation and settlement

What do you and I mean when we say “all things considered?”

The weather, we say, is good, “all things considered;” a new car, we say, isn’t bad, “all things considered;” a dinner, a movie, a vacation, a job, a new house, a day of the week, a month of the year, a year, a decade, an enemy, a friend, a family member, a city, a town, an old pair of shoes, all can be described with the words: “all things considered.”

But what do we really mean?

Do we mean “all things considered” when we say “all things considered?” No. We mean the opposite. When we say: nice day, week, husband, wife, daughter, son, pair of shoes, “all things considered,” we mean in spite of the weather, their criminal conviction, their tendency to lie, to tell the truth, to sell drugs, to buy shoes, or to hurt our feet. We mean to say all things not considered, and we mean to say we have considered those other things, too.

“All things considered” is a simple acknowledgment of the fact that life is not simple, that true perfection in life is nonexistent, that things might be better or worse for others, maybe most others, that things might be better for us, maybe a lot better, maybe a lot worse, but, given all of these irrefutable facts of which we acknowledge the absolute truth, we are accepting, no, pleased, no, thrilled, no, overjoyed with the current state of our life, the weather, this day, this pair of shoes, or whatever – all things considered – and we are looking forward to what tomorrow may bring.

Unless tomorrow brings a presidential election, an armed conflict overseas (whether or not we are a combatant), a lawsuit (in which we are a named party), a mediation conference (in which we may be required to acknowledge, as we already do in every other aspect of our lives, that certain facts take precedence over certain other facts), or any other circumstance in which we choose to pretend that all facts are created equal and, frankly, must all be considered.

Confidential settlement agreements may not remain confidential

We have learned that mediation confidentially is protected in California by contract law, by the plain meaning of statutory law, and by our highest state court’s confirmation that our statutory law means what it says. But what about our settlement agreements; what about the anticipated results of our mediations, are they confidential too?

The answer, as found by the Second California District Court of Appeal in the case of In re Estate of Thottam (2008) (PDF) 165 Cal.App.4th 1331, is that it depends upon the agreements of the parties and the plain meaning of the applicable statute.

Evidence Code Section 1123 provides that:

A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied:

(a) The agreement provides that it is admissible or subject to disclosure, or words to that effect.

(b) The agreement provides that it is enforceable or binding or words to that effect.

(c) All parties to the agreement expressly agree in writing, or orally in accordance with Section 1118, to its disclosure.

(d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.

In other words, a settlement agreement is “not made inadmissible” (is not confidential) if the agreement provides that it is admissible, the agreement provides that it is enforceable, the parties to the agreement agree to its disclosure, or the agreement is used to show fraud, duress, or illegality.

The importance of these distinctions was made clear in Estate of Thottam, which involved a dispute among siblings regarding the distribution of assets from their deceased mother’s estate. Before the mediation of this dispute, all three siblings and the mediator signed a “mediation and facilitation confidentiality agreement.”

Study finds that settling is often better than trial

A study of 2,054 cases that went to trial from 2002 to 2005, concludes that parties in litigation can, and more often due, win without fighting.

“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,” said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions.

Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial – meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

The problem in every case, of course, is knowing which ones should be tried and which ones should be settled.

The moral of the above study, at least for plaintiffs, may be that the settlement offer you just received from the other side really is the high point of your case.