Mediation Message No. 137


There is a correlation between popular song titles and what happens at mediations. Consider the following:

“Welcome to my world,” Dean Martin 1958. Mediators ask the parties and their counsel to come to mediation and to trust the process.

“I’m a believer,” the Monkees 1966. That comment is music to a mediator’s ears.

“Take this job and shove it,” Johnny Paycheck 1977; “Workin’ for a livin’,” Huey Lewis and the News 1982; “Back on the chain gang,” The Pretenders 1982. The theme songs of employees who are suing for job-related causes of action.

“Get a job,” The Silhouettes 1957. A former employer’s advice to a former employee’s lawsuit.

“Money for nothing,” Dire Straits 1985. How employers feel about settling baseless employment claims.

“That’s what friends are for,” Dionne Warwick 1985. Parties occasionally provide statements or declarations by friends in support of their facts.

“We belong together,” Mariah Carey 2005. The mantra of claimants in a class action or PAGA matter.

“I heard it through the grapevine,” Marvin Gaye 1983. Unfortunately, the grapevine (i.e., hearsay) is not very helpful in litigation.

“Fly me to the moon,” Frank Sinatra 1964. The unrealistic expectation of an unreasonable demand or offer.

“One is the loneliest number,” Three Dog Night 1969. $1,000; $10,000 or even $100,000, depending on the circumstances, can be a discouraging number for negotiating purposes.

“Yakety yak,” The Coasters 1961. Sometimes there’s too much talking, and not enough progress, during the separate caucuses.

“Listen to what the man says,” Paul McCartney 1976. Mediators hope attorneys tell their clients to listen to what mediators tell them about the facts, law and possible outcomes.

“Tired of waiting,” The Kinks 1965. It’s 2:00 p.m., the parties have been at it since 9:00 a.m., and a monetary demand has not yet been made.

“Light my fire,” The Doors 1967. One party is looking for an offer or demand that shows progress.

“Stayin’ alive,” Bee Gees 1977. The negotiation phase just got revitalized by a positive demand or offer.

“I gotta feeling,” The Black Eyed Peas 2007. One of the parties or attorneys has just read something positive into an opponent’s latest move.

“No reply,” The Beatles 1964. A party refuses to respond to the last offer or demand because it considers it to be unreasonable.

“Keep a knockn’,” Little Richard 1958. The perfect response when a party has stopped negotiating.

“I’m walkin’,” Fats Domino 1957. The threat to leave, rarely real, by a party when it says that mediation is not working.

“Please stay,” The Drifters 1957. The response when a party threatens to walk.

“All shook up,” Elvis Presley 1969; “Tossin’ and turnin’,” Bobby Lewis 1961. Something negative or positive happened during the mediation which shook up one of the parties.

“Let’s spend the night together,” The Rolling Stones 1967; “Dance the night away,” Van Halen 1979; “Night moves,” Bob Seeger 1981. The mediation may take longer than planned.

“You can’t always get what you want,” The Rolling Stones 1969. “But if you try sometimes well you might find you get what you need”; i.e. despite existing obstacles, reasonable results are still achievable.

“(I can’t get no) Satisfaction,” Rolling Stones 1965. The Stones had not yet become philosophers.

“That’s life,” Frank Sinatra 1966; “It’s all in the game,” Tommy Edwards 1958; “I’m a loser,” the Beatles 1964; “While my guitar gently weeps,” The Beatles 1968; “I will survive,” Gloria Gaynor 1978. A fatalistic approach when a party’s goals or expectations have not been achieved.

“Luck be a lady,” from Guys and Dolls 1950; “Could this be magic?,” The Dubs 1956. When things are not going well, relying on luck or magic to turn things around.

“It’s over,” Roy Orbison 1962; “End of the road,” Boyz II Men 1991. Despite everyone’s best efforts, the matter is not going to settle that day.

“Call me,” NAV 2017. The mediator is going to follow up the unsuccessful mediation with phone calls to the attorneys.

“The great compromise,” John Prine 1972. A settlement has been achieved.

“Take the money and run,” Steve Miller Band 1976. From a plaintiff’s perspective, it’s a great deal.

“Hallelujah” chorus from Handel’s “Messiah;” “Happy days are here again,” Ager and Yellin 1929. The feeling of euphoria when a resolution or settlement is achieved.
This recording session is now over. See you next month.

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

Copyright October 2017

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