Frivolous Claims
It genuinely did not occur to me until I'd been mediating full time for a year that "frivolous" claims most often arise from felt injustices (instances of unfairness in the commercial world) that the law does not recognize.
When attorneys attempt to rectify non-actionable wrongs, they so drastically "spin" their clients' stories that the resulting claims appear to be false and therefore not only frivolous, but malicious.
By the time the parties come to mediation, the legal "story" has often become unrecognizable to all the parties -- a result of client "control" at depositions and pre-trial proceedings in which the "whole story" has been so riddled with holes that it most resembles a piece of Swiss Cheese.
A good mediator can relocate the original story of injustice; be the agent of reality for the plaintiff's often inflated expectations of recovery; and, re-translate the "frivolous" lawsuit back into the tale of unfairness that made the client seek out counsel in the first place.
When this is accomplished, the defendant is able to settle the lawsuit without feeling black-mailed, a term that, along with "extortion" is most frequently used by defendants who genuinely do not know what could possibly have motivated the plaintiff to sue them other than greed and malicious ill will.
When the defendant wrestles with the actual, rather the the legal, theory of injustice, the settlement becomes a way of successfully grappling with and resolving what are usually simply business communication or management failures.
The good news? You don't need a mediator or even a lawyer to "try this at home." If you are a business person with a legal dispute, try talking to your adversary before you bring in legal counsel.
When you do need an attorney, talk to him about business solutions to to the legal problem.
If you are an attorney with a "client control" problem, bring your client back in from the cold.
As litigators, we tend to forget that our business clients have often negotiated more deals in a single week than we do all year. Engage their creativity and together you will be the best attorney-client team on the block.
