When War Breaks Out. The War of the Roses is a 1989 film starring Michael Douglas, Danny DeVito and Kathleen Turner that satirizes the herculean battle that erupts when a seemingly happy couple’s marriage begins to crumble. As the couple’s relationship devolves, material possessions become the center of an outrageous and bitter fight. In the bloodbath, the couple makes it their mission to spite and besmirch each other in every way possible on a quest to be the prevailing party. Both humiliate one another in front of friends and acquaintances. Both begin destroying household furnishings and personal possessions. The husband “accidentally” runs over the family cat. The wife “accidentally” traps the husband in the sauna where he nearly succumbs to heatstroke and dehydration. They each stand firm in their righteousness and refuse to consider the other’s position at all. The antics are funny and at the same time, not so funny because it is a sad commentary about the ways in which people act when a dispute breaks out and goes way too far. While the film was released decades ago, scorched-earth behavior is alive and well today, especially in litigation.
When War Shows Up To Mediate. In too many instances, by the time I am retained to mediate a civil matter, I have stepped right smack into the middle of a War of the Roses. The combatants here are not a married couple but worse: two or more attorneys and their clients who have managed to upset one another in short order, whether through taking overly-aggressive positions, engaging in endless passive aggressive acts, refusing to talk, refusing to cooperate, refusing to respond, taking the case personally, fighting over non-issues, distrusting their opposing counsel and more often than not, drinking their own Kool-Aid about a case to a fault.
A party or attorney who has gotten punch-drunk on their own Kool-Aid and who flatly refuses to look objectively at their own case is perhaps the biggest obstacle in resolving a case. By the time these kinds of cases come to me for mediation, the participants cannot consider the weaknesses in their case and cannot find a way to move the matter forward in a cost-effective manner. Before you get to this stage and show up for a mediation where both parties may have incurred more attorney’s fees and costs than the case is worth, consider early intervention.
Early Neutral Evaluation Can Cool Things Down. Early Neutral Evaluation is a process where a skilled neutral is engaged early on in a case where battles are waging or starting to wage but has not turned into a full-blown war, yet is clearly heading that direction. In cases where I have been retained as an Evaluator, I discuss the matter with the parties and their counsel, review evidence and assumptions and thereafter provide the parties with a neutral evaluation of the case. Sometimes I will meet with the attorney and their client over Zoom to get a sense about how the client presents as a witness.
A Neutral Evaluator should have subject matter expertise in the issues at hand and be able to quickly identify and evaluate issues on both sides in a neutral manner. Sometimes, parties have more homework to do before a true evaluation can take place. An Evaluator can point this out to the parties with the goal of getting closer to an understanding of the merits and risks of each side’s position. Where it is called for, I will negotiate agreements between the parties to exchange a limited amount of evidence so that the parties may ensure that they are getting a better view of the matter than when they came to me.
The information imparted to the Evaluator will be confidential. It gives the attorneys the ability to talk openly about their cases without the fear of compromising their position. A skillful Evaluator knows not to throw an attorney under a bus in front of their client when that attorney has gotten overly zealous at the outset of a case and at the same time, is not to be afraid to be frank about what the Evaluator sees.
Once I have reviewed the facts and evidence and have considered the issues, I will prepare a written evaluation. This evaluation may include a settlement range. Before presenting the evaluation to the parties, I ask the parties if they would like me to pivot to a more mediative role to try to resolve the case. Most often, the parties choose this option. The process of talking the matter through with a skillful Evaluator often has the effect of helping a party see how and why to pivot towards resolution. If the matter resolves, there is no need to provide the evaluation. If the matter doesn’t resolve at that time or soon thereafter, the parties have at least done a gut-check about their case and can plan accordingly.
Early Neutral Evaluation can be particularly effective because the feuding attorneys often feel free to have an open and frank discussion with a neutral about their case. This is a relief to many attorneys. They are more apt to hear information coming from a neutral than from their adversary. Evaluation can also be a tool an attorney can use to pivot their client in a more productive direction. Often, an Evaluation can easily transition into a mediation or at worst, give everyone a path to advancing their case and moving it closer to resolution. And, the family cat will live to see another day.