Level 3 — A More Perfect Resolution
What is Mediation For?
Although we have tried many big cases, we understand that a trial is the last resort. To the extent possible, the parties should make every effort to find some middle ground on which the dispute can be resolved. And most of the time the courts demand that the parties engage in good faith settlement efforts well before the trial date.
That’s what mediation is for.
Over the years, we have seen countless mediations and various styles of mediation. Our clients appreciate mediators who invest the effort to study the case, to know the parties, and to become conversant in the key sticking points of the dispute.
On the other hand, our clients do not appreciate mediators who do not know them, do not know the case, and who seemingly listen briefly to the parties only to move quickly to the “game of numbers.”
Some cases settle that way. But many disputes are too complex, too heated, and too important to be approached in this fashion.
In our view, litigation is usually about more than money; more often than not, it is a contest between the competing stories that the parties bring to the dispute.
Mediation, therefore, should be an intentional, informed, and guided conversation between the competing interests and narratives presented by the parties.
Mediation should be about more than the money. It should be about more than trading numbers, which rarely gets to the heart of the dispute.
In our experience, though, this is largely what mediation has become—an argument over numbers.
As litigators, we find this approach limited and ineffective. And our clients find it unsatisfying and inefficient.
We Are Level 3.
We are settlement counsel. We offer active, substantive, and collaborative facilitation of dispute resolution in the most substantial legal conflicts.
We work on complex, high value disputes where resolution short of trial may appear impossible:
- Each side is well represented by able, prepared counsel;
- Each side has well developed, legally valid positions;
- Each side is able to finance sustained litigation if resolution is not reached.
In other words, we work where the stakes are high and all of the ingredients necessary for a lengthy, costly, possibly catastrophic litigation are in place.
What We Believe.
We believe that mediation must rise to the occasion in tough cases.
We believe that “a more perfect resolution” means an agreed common position resulting from a full hearing and mutual understanding, even where “complete agreement” is not feasible.
We believe that the job of the mediator is to meet and know the people involved (clients and counsel), hear and listen to their positions and personal narratives, and to participate in guiding a constructive conversation between the competing narratives.
We believe that resolution in hard cases is most likely when all concerned are deeply informed of the respective perspectives of all concerned, informed of the full range of risks of continuing disputation, and informed of the full range of possible creative solutions to the dispute.
How We Work.
The scale and scope of our work depends upon the complexity of the matter and the wishes of the parties. Nevertheless, in every instance:
We meet and know clients and counsel.
We actively learn the respective stories and investigate the material issues.
We learn the case—the substantive issues, the evidence, the strengths and weaknesses of each side’s story.
We engage with the competing narratives: affirming, challenging, pushing, and reframing.
We are thorough: we deepen the understanding of all by directed investigation, efficient and collaborative discovery, and facilitated conversation between the parties.
Level 3 is what mediation of a complex case is supposed to be.