Ever feel like your mediation is turning into a Monty Python skit?
Consider the kind of mediation where one of the lawyers decides to disagree on everything, including the weather:
“It sure is hot today,” casually remarks Peter Positive, counsel for the plaintiff, flashing his trademark smile.
Hardly allowing Peter to finish his sentence, defense counsel Gain Gainsayer fires back, “Hot? Are you kidding? You haven’t seen hot. Those of us who have tried a few cases consider today’s temps rather balmy.”
The mediator takes a deep breath and recalls “The Argument Clinic,” the classic Python bit where Michael Palin plays a man who pays a receptionist for a five-minute argument with an argument professional played by John Cleese.
Fortunately, most of the lawyers with whom I mediate understand that mediation is not just the “automatic gainsaying of anything the other person says.”
On occasion, though, I run into lawyers who consider it their primary task to contradict pretty much anything that opposing counsel, or the mediator, says about their case. How do you deal with this situation? What do you do if you run across a Gail Gainsayer when you are the opposing lawyer or party, or the Mediator?
I suggest that you resist the temptation to cut the mediation short “as a complete and utter waste of time” (by the way, why is a purported waste of time invariably “complete” and “utter”?) and instead apply the invaluable lessons from Monty Python U.
The Michael Palin character engages in “no it isn’t” “yes it is” nonsense for a reason. The skit involves a dialogue about nothing. The professional arguer has nothing to say because there is no theme to the argument.
The lawyer who engages in automatic gainsaying similarly has little if anything to say. Gail Gainsayer may feign that she is “holding back” her compelling points for trial, but everyone at mediation knows that the odds of the case actually going to trial are less than 1%. By the time trial rolls around, Gail may figure out how to string together a “connected series of statements to establish a definite proposition.” As far as this mediation goes, however, Gail’s case stands on shaky ground.
Carpe diem, spoke the poet.
– Rob Daisley