Sandra Mazer Moss

Once in the reinventing mode, you sometimes find yourself reinventing everything around you as well. So it is with alternative dispute resolution.

For example, I have found that most attorneys, both plaintiffs and defendants, focus on the bottom line when preparing for a mediation. What is the case worth? That's the pivotal question and from that pivotal point demands are formulated and offers devised.

I am not necessarily disagreeing with that basic approach. However, I am suggesting a little reinventing might be in order.

First, we must recognize no injured party can be made whole—neither plaintiffs nor defendants. As I tell everyone at the start of a mediation: “If I could roll the clock back and prevent the occurrence in question from happening, I would do that in a heartbeat, everyone would go home happy and no money would change hands. That, however, is impossible so we need to work together to find a mutually acceptable solution that makes everyone feel comfortable.”

Since “the mutually acceptable solution” is easier said than done, my introduction usually launches a day of intense debate. So here's where the reinventing comes in. While the main focus of mediation is finding that “magic number,” there is another equally important piece that often gets overlooked. It is the nonmonetary offer that, more often than not, is the gift plaintiffs are waiting to receive, even though they do not know it and defendants are willing to give—if anyone bothered to ask them.

Finding the right nonmonetary offer takes creativity and the ability to think outside the box, to focus on the problem from the adverse party's perspective. Moreover, the “nonmonetary” solution, in fact, may cost some money to effectuate. But, in most instances, putting “your money where your mouth is” might be the best solution to offer and even the right thing to accept.

Perhaps from my years on the bench, some examples may help to prove the point. (Since mediations are confidential, I am reluctant to discuss them.)

There was a case involving the death of a patron walking across the parking lot outside an entrance to a supermarket. The plaintiff, the deceased patron's daughter, alleged the configuration of parking spots in the lot was defective and unreasonably dangerous. She was devastated by her father's death and wanted nothing more than to drive the supermarket chain into bankruptcy. No amount of money would appease her. After many hours of negotiations, an offer was made that the plaintiff's counsel strongly recommended she accept, to no avail. So, he asked me if I would intervene.

After listening to her concerns that no one should ever be injured in that parking lot again, I asked: “What if the company redesigned the parking lot as your expert suggested? Would that satisfy your concerns?”

She thought about it, spoke privately to her attorney and finally agreed.

Then, I spoke to the defendants and asked if, in addition to the settlement offer, would they agree to redesign the parking lot following the plaintiff's expert's suggestions. They reviewed the plans, checked with their experts and eventually agreed. The case was resolved with the only added costs being a coat of black top and several buckets of white paint to realign the parking spaces in a safer fashion—a win-win for everyone.

There are so many ways to add a little creativity to defuse an explosive situation. A written apology will go a long way toward peace; a commemorative plaque, a scholarship or a rule change could do the same.

In one instance, all the parents wanted was for the defendants to view a video of their deceased son. In another, the plaintiffs were satisfied knowing their settlement would be recorded in a national data bank. In a third, the defendants agreed to blow up a dam at which several fatal accidents had occurred.

My personal favorite—and one I see every time I drive the Schuylkill Expressway—is a rope barrier that spans the falls on the Schuylkill River behind the Philadelphia Art Museum. It was part of a settlement in the death of a rowing coach many years ago. That case settled without one penny being exchanged between the parties. A rowing scholarship, a water safety course, and the rope barrier were the only agreed-upon terms. Justice was done in the best way we all knew how to do it. Most fulfilling is that, over the years, I have been told by several rowing coaches that the rope barrier has, and will continue, to save lives.

Obviously, not every case lends itself to a creative approach. However, we should all reinvent ourselves to think more outside the box and to look harder for that creative solution, if one exists. It can be the catalyst for a settlement no one thought possible. And, when cases settle, justice is done in the best way possible.