Mediation in a Blink
In his book 
Blink, Malcolm Gladwell uses the term "rapid cognition" in reference to what most of us think of as intuition. Gladwell avoids the "i" word because he does not want his readers thinking he's referring to emotional responses. Rapid cognition, he stresses, refers to our rational thoughts and impressions. Though one suspects that Gladwell steers clear of emotion so he won't be called a "girlie man," he does in fact have a more serious purpose in mind.
Gladwell explains:
I think that what goes on in that first two seconds [of thought] is perfectly rational. It's thinking -- its just thinking that moves a little faster and operates a little more mysteriously than the kind of deliberate, conscious decision-making that we usually associate with "thinking."
According to Gladwell, our rapid cognition often produces far better results than our painstaking analytic analyses of the vast amounts of information we professionals routinely gather.
Diagnosing Heart Attacks with "Incomplete" Information
To demonstrate his point, Gladwell tells the story of one hospital's attempt to encourage its physicians to use their RC in diagnosing heart attacks. The hospital instructed its entire staff of emergency room physicians to gather less information concerning their patients' condition before attempting to diagnose a heart attack.
This information-limiting scheme, allowed the doctors to zero in on just a few critical pieces of information -- like blood pressure and the EKG -- while ignoring everything else, like the patient's age and weight and medical history.
The physicians resisted of course, because they were committed to the idea that more information is always better. When forced to rely upon limited information however, the accuracy of diagnoses in the ER increased dramatically.
The Pre-Trial Discovery Proceedings We All Know and (Love?)
What does this vingette have to do with the settlement of lawsuits? Plenty. Whether intuitive or simply ingrained by training and practice, few complex commercial litigators question the need to acquire vast amounts of information from scores to hundreds of sources before they feel comfortable discussing a negotiated resolution.
Unfortunately, by the time all of that discovery has been completed, not only have the parties expended tens of thousands, even millions, of dollars in pre-trial proceedings, the process itself has hardened the parties' positions and escalated the conflict to a point where a negotiated solution is difficult to impossible.
Free Discovery
Although considerable information might be shared during the mediation of a lawsuit, most attorneys and their clients rebel at the idea of giving the other side "free discovery." This is from the "make them suffer" school of settlement advice, counsel I've often followed to my own regret. In commercial litigation, most of the parties have sufficient resources to bomb themselves back into the stone age while attempting to destroy their opponent's resources and will to "fight."
In those cases where scorched earth discovery is more mutually assured destruction than wise litigation strategy, why not take the path of "free" discovery, before, during and after settlement discussions, whether they be with the assistance of a mediator or not.
Case Study
In a small case I handled while still on the Superior Court pro bono mediation panel, I was asked to help the parties resolve an unfair debt collection action. The parties resisted any attempt to discuss settlement in a joint session, using my services instead to shuttle offers and counter-offers back and forth as is common in local mediation practice.
The case had been sent to mediation early -- before the plaintiff's deposition had been taken. She was a lovely young woman who recounted a plausible story of repeated bill collector harassment, not only at her own workplace and home, but at her mother's and grandmother's homes and workplaces as well.
Defense counsel believed the case to have only nuisance value. He believed that plaintiff -- whom neither he nor his client had met -- was an out and out liar -- maliciously extorting the collection agency for all she could get. Whatever the "truth" might have been, the defense admitted that they had no "silver bullet" motion to kill the case before it went to a jury. They would have to settle it or try it.
Thinking the defense might be underestimating the value of the case, I recommended a controlled joint session in which the Plaintiff would tell her story in response to her own attorney's questions. Plaintiff's counsel reflexively responded with a phrase I've now heard countless times -- not a chance, he said, I'm not going to let them use the mediation just to get free discovery.
Moving Past Impasse
As the morning wore on and it appeared the parties were at impasse, I again suggested that plaintiff's counsel let the defense see what they were likely to be up against at trial. After all, I asked, don't you assess a party's credibility in the first half hour or so of any deposition? You don't usually need the whole, or even half the day to get a "read" on how a jury will respond to a witness. She seems very credible to me, I added. Do you really want to spend a day in deposition to let the defense know it.
Plaintiff's counsel finally but reluctantly agreed. As the plaintiff told her story in response to her own attorney's questions, I could see in the posture of defense counsel a growing conviction that their initial case evaluation had been wrong. Respectfully, they asked if they could pose a few questions. Plaintiff's counsel granted their wish. Satisfied, they thanked the Plaintiff as she was ushered out the door.
When we next broke into separate caucuses, the defense was willing, for the first time that day, to put a serious offer on the table and the case settled within the hour.
Evaluating Jury Appeal with Rapid Cognition
In small or large "he said/she said" cases, perhaps the most important information lawyers gather is the credibility and appeal of the witnesses. We do this as rapidly as we decide whether someone is attractive to us or not. It is nearly instantaneous. In the unfair claims practices case discussed here, counsel for the defense needed only a few minutes to change their evaluation of the case -- something no amount of discussion about the legal or factual "merits" of the claim could have accomplished.
The story telling session also had an unexpected benefit. A few days after the mediation, I received an email from Plaintiff's counsel telling me that his client was not only happy with the monetary compensation she received, but that telling her story made her feel as if she'd "had her day in court."
The lesson? Permitting one's client to give a sincere account of dispute without the formality of a deposition proceedings, not only saved time and money, it helped everyone settle the case without the bad taste of injustice in their mouths.
And a settlement just doesn't get any better than that.
