Mediation Message No. 114



The following comments are frequently made by attorneys during mediations. I have provided irreverent interpretations of what the speakers may be saying or intending.

“We expect significant movement from (the opposing party)” or “They need to make a big move.”MDM’s observation –The speaker sounds like a doctor performing a yearly physical.

“This is not a six figure case.” MDM’s observation – The defense is not so subtly signaling that the case has to settle below $99,000 while, at the same time, the plaintiff’s demand is somewhere around $600,000.

“We don’t want to create a floor.” MDM’s observation – Is the speaker in linoleum sales? How can a floor be created when mediation negotiations are confidential and cannot be referenced in future discussions should the mediation be unsuccessful?

“Their offer (or demand) is not in the ball park.” MDM’s observation – This is a mixed metaphor because a ball hit out of the park is most desirable.

“Why are we here (when negotiations are not going well)” – MDM’s observation – What am I, an existentialist? Where’s Jean Paul Sartre when I need him?

“They’re not here in good faith (when the offer or demand doesn’t meet expectations).” MDM’s observation – How does the speaker know this? Has he or she a hidden microphone in opposing counsel’s room?

“They’re the ones who wanted this mediation (when the negotiations aren’t going well).” MDM’s observation – Interestingly, opposing counsel is saying the very same thing.

“I hate brackets.” MDM’s observation – The attorney has probably never used brackets before because they’re effective when market place bargaining has stalled.

“This is not my first rodeo.” MDM’s observation – If it isn’t, why are you gripping the arms of your chair like you’re afraid of falling off?

“We don’t want to send the wrong signal.” MDM’s observation – These lawyers think they’re traffic guards.

“I’m not bidding against myself.” MDM’s observation – Self-flagellation is unseemly.

“I increased my offer by 100% while they’ve only decreased their demand by 25%.” MDM’s observation – What the speaker didn’t mention is that the client increased its offer from $5,000 to $10,000 while opposing counsel decreased his or her demand from $300,000 to $225,000.

“They’re negotiating with Monopoly money.” MDM’s observation – Hasbro should be advised that counsel is engaging in the dilution of a trademark. An alternative to the foregoing comment is “Our money is real money.”

“We’re running out of room.” MDM’s observation – Well, then, get a bigger room.

“They’re going in the wrong direction.” MDM’s observation – The only wrong direction occurs when a party walks out of mediation without a settlement.

“Where did they get that demand or offer?” MDM’s observation – Only a proctologist can answer that question.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, September 2015

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