3Chairs Mediation Group

Are We There Yet? Can We Pick the Perfect Time to Mediate?

We’re smart. We know that not all time is the same. The time we spend sitting on our couch is different than the time we spend rushing to catch a bus.

Parties to a mediation can perceive the timing choice of mediation differently. One thinks they are sitting on a couch pondering what’s possible. The other, is late for her bus, and focused on what is inevitably bad if she doesn’t leave her house in the next two minutes.

Here, a favorite maxim vividly illustrates our point about perspective: “When it comes to bacon and eggs, the hen is involved. The pig is invested”. How do trust our hunch that it’s time to mediate? Mediation works best when both sides are that pig.

When both sides know they are that pig, mediation is so right we’d invent it ourselves, if it wasn’t already real. More about that in a future article.

More typically, we think we are that hen. We’re okay with a solution someday if we remember to care about it. In the meantime, we’re all right where we are. Mediating that case, is what this article is about.

Sometimes, we are that involved hen for the blink of an eye, and we shift to that invested pig even before we agree on a mediation date. How?

There are necessary waypoints in litigation that invest us in the fight. We must confront them- we have no choice. We call them motions to dismiss, or motions for summary judgment, motions to shape the pretrial discovery landscape and for sanctions when we tear it up, motions to disqualify expert witnesses, or even motions in limine to bar essential trial evidence. Whatever their names, their outcomes take attractive possibilities away from us. Each changes our risk appetite.

It's savvy disputants that are that hen for the blink of an eye. They, do chess in their head. Early, they play out the hypothetical motion to dismiss and summary judgment fight and to each, they ascribe real, not rosy, odds they’ll succeed. They are that pig that mediates early because they trust the future they’ve projected.

The rest of us are unaccustomed to legal fights and we learn as we go. We spend an inordinate sum of time as that hen. Our strategy is not mental chess. We learn experientially; by trying and failing. We think we are lounging on our couch. As time passes, we learn we’re really, late for our bus.

Experience is our top teacher for most of us. Gaining it in our dispute, we first spend wisely. We invest impactful litigation dollars learning about our foe’s case or defending ours against attack. We spend wisely too, when our ambition is to kill a case early, or the opposite; show the other side we are serious, and they can’t dispatch us early and cheaply because law is with us.

After that, we’re at a tipping point, and litigation dollars are some of the dumbest dollars we sacrifice. Our case doesn’t get better. Instead, we spend our thousands of dollars, maybe hundreds of thousands, wardrobing our case, so it’s sharply dressed for trial. If we make it to trial, we’ve spent a fortune making our case irresistible. What’s our prize? It’s not certainty. We ride a rollercoaster, then we listen to strangers tell us we win, or we lose. Nobody in human history has ever said about trial, “That was fun, let’s do that again”.

Okay, so how do we know it’s the best time to mediate? If we remember that hen and pig, we look for that goldilocks moment when both sides can still credibly argue they win and there’s urgency to settle because the menu of attractive possibilities is about to shrink; hypothetical outcomes we can threaten, or fear, are about to become real- the hangman’s noose has our attention.

Much about litigation is economically inefficient. Our mediation expense is a comparatively paltry sum of money well spent if we know why we pick our mediation date and we’re ready for it.

Can Rocket Science Teach Us Anything About Settlement Value?

Knowing the legitimate value of our case, makes us potent and self-assured mediation participators. Credit goes to NASA, for its expert object lesson teaching us to look at known, and unknown unknowns, and for giving us a superpower that credibly appraises the genuine settlement value of our case before we mediate it. The tool doesn’t replace our legal judgment, it supercharges it.

Instinctively, we "sense" the odds that something can happen to us. All of us flip coins and we are comfortable predicting a fifty-percent chance our coin lands, “tails”. We know the chance we draw that card we want from a deck; one in fifty-two. How confident are we knowing probabilities when questions are complicated, and a long chain of events made of distinct event outcomes, affects our success? Not very sure, it turns out.

If we trade NASA’s rigorous risk/reward analysis for our litigation intuition, we will resolve our cases swiftly, advantageously, and cost-effectively.

Few things are more complicated than rocket science. Here’s how NASA uses its tool:

Do we know the distinct things that must go right for us to get live images from a robot on Mars’ surface? NASA engineers do, and the odds are not good.

Four years ago, Kobie Boykins, principal mechanical engineer at NASA’s Jet Propulsion Laboratory in Pasadena, California, took the stage to speak to a large audience. At the time, Boykins’ role was designer of every actuator on NASA’s Curiosity Mars Rover. For non-engineers attending, Boykins explained, “Actuators are machine parts that start, stop, and manage movement. If actuators go bad on Mars, the rover doesn’t 'rove'”. In describing his formidable responsibility, Boykins said, “actuator failure means mission failure.”

NASA spent $2.53 billion on its Curiosity science mission. Boykins had to foresee known unknowns, and predict unknown ones, so a faulty solar panel extender, or a dodgy axle motor, didn’t malfunction 140 million miles away, demolishing the mission thousands of engineers and scientists devoted years of their lives to achieving.

Before Boykins’ first actuator so much as twitched, the lander carrying the rover had to get to Mars orbit. Liftoff of the Atlas V rocket, earth orbit, transit to Mars and deceleration into Mars’ gravity capture could have failed.

The rover descended to Mars under an immense polyester and nylon parachute. In the final seconds before landing, the landing system fired hydrazine rockets and the lander hovered, while a one-of-a-kind carbon fiber tether lowered Curiosity gently to the surface. The rover landed on its wheels, controlled explosions cut the lander tether free, and the landing system flew off to crash-land a safe distance away. The odds of NASA’s world class genius putting Curiosity on Mars? Less than one in three.

The odds Curiosity’s dozens of indispensable actuators each did their jobs? Boykins pegged it at one in four.

What then, were NASA’s odds that everything went right, and we saw live pictures from Mars? NASA plugged the “one in three” and “one in four” numbers into its tool. The answer? Eight percent. What! How? Thirty-three percent of twenty-five percent is eight percent. The math works because logically, we cannot succeed or fail at step two, unless we succeed at step one first.

Here it is again, in practice: A little more than two-thirds of the time, NASA Mars surface missions fail before the surface science experiments start (Step One). Once in every four attempts, the complicated robot machinery does its science flawlessly (Step Two). We can see the chain of sobering probabilities against us getting our pictures.

In our gut, we sense that most risks are fifty/fifty. That’s served us well in coin flips. It’s a distorted confidence when we are betting on the chance to flip our coin and our chance to do it, depends upon the outcome of our last coin flip. Dispense with our litigation intuition and instead, apply NASA’s penetrating probability model to our own probabilistic risk/reward analysis about taking our case to trial. NASA’s tool is math. It’s agnostic; it shines impartially on plaintiffs and defendants. It’s only faithful to logic.

What are our real odds of winning or losing a motion to dismiss? Win, and we get our chance to litigate consequential discovery motions. Next is summary judgment, then motions in limine before trial. What about our fight over jury instructions and the special verdict questions? Attorneys’ fees and costs? Collecting on a judgment, or paying it? Avoiding appeal, or prevailing on it?

We litigate because we want to win. Distinct events are less or more likely to happen depending on our case. On our way to victory, our litigation outcome hinges on the probability successive event outcomes in our event chain, favor us- pool sharks call it, “running the table.”

NASA spent $2.53 billion on the eight percent likelihood we would see live pictures from Mars. It worked out great. At what cost do we take our case to trial at the expense of an agreeable settlement? If our legal judgment about our risk is good, we can trust our answer.