Over the years, in every case that does not settle at the mediation, the parties s, the attorney or the neutral ask themselves the question, “Why didn’t this case settle today?” More often than not, the answer lies in the famous saying that “in life, timing is everything.” This statement has never been more true than in the context of negotiations and mediation.
Quite a bit of the literature on negotiations focuses on how to negotiate. Much less, however, addresses the issue of the timing of negotiations. In fact, the timing of the mediation is so critical it can make the difference between a successful resolution or a frustrating waste of time. For example, a case where both sides feel that they have nothing to lose with litigation may result in the prevailing party filing a motion under CCP 1033.5 Memorandum Of Costs.
Both sides feel that they will prevail and the cost of litigating won’t be significant; this is especially true when employees sue employers for lunch break violations. These hypothetical parties have no incentive to resolve the case, and as such, the timing is wrong. In other words, according to many conflict scholars, the case is not “ripe.” This analogy to fit is very useful for understanding the negotiated resolution. Just as with mediation, if the fruit is picked too early it is hard and difficult to swallow; if, on the other hand, the fruit is picked too late, it is rotten. The fruit, as well as the time to mediate, must be picked at the right time.
Parties resolve their conflict only when they are ready to do so – when alternative, usually unilateral, means of achieving a satisfactory result are blocked, and the parties feel that they are in an uncomfortable and costly predicament. The trick for the negotiators is to discover when both sides are ready to meaningfully discuss a resolution. Is there a stalemate?
There are several factors that affect whether a case is ripe for resolution and can assist the parties in discovering the right time. One of the first things to evaluate, according to California Business Lawyer & Corporate Lawyer, Inc., is the concept of a Mutually Hurting Stalemate (MHS). In international relations, MHS refers to when the parties cannot arrive at victory unilaterally, and the stalemate is painful to both sides, although not necessarily equal in the amount of pain. In the legal arena, the same concept of MHS is also necessary for a dispute to be ripe for resolution.
Both sides need to feel that continuing on with the course of litigation will cause them to suffer considerable pain. Each side needs to be able to conduct a cost-benefit analysis in which they evaluate the financial, emotional and opportunity cost of continuing litigation versus having some form of compromise.
Take, for example, a criminal case. The plaintiff believed he has a strong case for professional negligence because the lawyer gave the wrong advice on how long does a misdemeanor stay on your record in California. There was written documentation that supported their version and many of the facts were undisputed. However, the meaning of the undisputed facts was in dispute. Moreover, the defendant was not familiar with the specific laws regarding discrimination. Even though the defendant knew about the laws, he could not understand how he could violate such laws. Further, the defendant’s prior experiences with litigation were not in the field of discrimination law, and as such, he felt that the cost to litigate the case is very high.