Thursday, November 12, 2015

Who is Really the Ultimate Decision Maker?

Many years ago, in 1980, Rush sang Freewill.  One of the lyrics of that tune is "if you choose not to decide, you still have made a choice." That is a line that parties might want to remember when they head to mediation. 

So many times, I have heard the mediator caution litigants about the "worst case scenario." That is, the outcome in which all is lost. Mediators then provide the alternative; the pitch is that "today" (the mediation) is your day. At the mediation the parties are in the position to craft their own outcome to their dispute. There are many angles to this construct, and I have heard it explained in many formats, but at the end of the analysis, the message is the same. The parties decide, freewill.

There are no rules of evidence at mediation. The parties are free to say what they want to say. Each may spread on the table whatever documents or photos they wish. The parties may assign the importance they feel appropriate to testimony already memorialized, testimony expected, or even testimony desired or hoped for. 

At mediation, there are often variables that remain unknown from all perspectives. Parties may have expectations and plans for how evidence will develop, and how it will play out in a trial. When cases do not settle, sometimes those plans come to fruition just as expected at trial, but sometimes there are curve balls and unexpected developments. 

There are times when some witness' perspective and therefore testimony is changed by cross-examination, at a deposition for trial or at trial itself. The witness may learn something new when confronted on cross. Sometimes it may be as simple as the witness being asked a question in a different way on cross. 

Every witness knows her or his own perspective reasonably well. Each party generally knows her or his case, that is the composite of all witnesses or documents, reasonably well. Often the discovery process is revealing or educational and by trial some parties may feel they understand the opposing case reasonably well also. But trial can bring the unexpected.

It may be that the process leading to trial will provide information that leads to decisions. There may be information gleaned in discovery that is perceived to strengthen a party's case, or threaten it. There may be motions filed, and rulings on those may change each parties' perceptions of the evidence, and the strength of her or his respective case. 

There are occasions when cases settle during trial. Something in the course of trial may lead parties to further discussions during some break, recess or pause in the proceedings. 

There are occasions when a case will settle following the trial. At that time, the outcome may remain unknown, as the verdict or ruling has not been rendered. Despite this, a party may have perceptions gleaned through the trial process. Evidentiary objection rulings may have been made that effect a party's confidence, positively or negatively. Evidence may not have presented as anticipated; objectionable evidence may have been admitted or critical evidence may have been excluded. In short, much can happen in trial. 

There are occasions when a case may settle even after the verdict or ruling has been entered. A party may file an appeal of such a decision, and in the course of preparing legal arguments for the appellate court, discussions of compromise may ensue. There are processes for "appellate mediation," discussions about compromise with a mediator to assist. 

The appellate process can take time, and sometimes the result of an appeal is not a ruling in either party's favor. The result may be a remand from the appellate court, an opportunity to go back to the trial court and try that case again. This brings both parties back to square one and the uncertainties, perceived or real, with her/his own case and the opponent's.

At any time, before litigation or even after an appellate opinion has been published, the parties are free to discuss their own solution to their dispute(s). In their discussions, they can proceed based upon their perceptions of the strengths and weaknesses of both their own case and the case of the opposing party. 

The parties have to appreciate and respect the potentiality that at any stage of the case, things may not work out as anticipated or planned. Armed with their perceptions of how things might ultimately conclude in the litigation process, each is free to make her or his own decisions and predictions, to assess risk, to consider strengths and weaknesses, and to decide whether any alternatives are worthy of consideration. 

The ultimate decision maker is not the trial judge, it is not the jury, it is not an appellate court. The ultimate decision maker is the party to the litigation. The decision may be to proceed to trial or appeal or to settle the case; there is no "right" or "wrong" answer except to the extent that the party decides it is "right" or "wrong." Whatever the decision, "you still have made a choice." It's about freewill. 


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