Ed Ahrens, Jr., Esq. writes monthly thought provoking Editorials on mediation. These views are Ed's and do not necessarily reflect those of Florida Mediation Group.

Absence makes hearts grow fonder, so they say. An apt aphorism for lovers-not necessarily for parties to a mediation.

When adversaries in litigation or pre litigation are miles apart or "absent" from one another in their respective evaluations, insurmountable problems sometimes arise. Such cases are especially frustrating for mediators, as they rack their brains trying to figure out what they are doing wrong.

Assuming, for purposes of my thesis, there are no disagreements about the facts of an accident or other circumstances of a dispute or about the applicable legal aspects, it is to the credit or discredit of the human mind that opinions on damages still can differ drastically and irresolvably. Truth is, there are times when one or both sides in a legal dispute have such disparate opinions of the value of a claim that the gap cannot be closed. Is this the mediator's quintessential copout? Perhaps. I hope not. In many instances it may have more to do with 1) an attorney's exaggerated opinion of his or her professional worth; 2) an attorney's desire to perpetuate (or restore) his/her track record in court; or 3) a party's exaggerated or unrealistic opinion of the claim's worth, often, on the plaintiff's side, stimulated by friends, relatives and/or news media and, on the defendant's side, depressed by associates, supervisors not present at mediation, and/or news media.

A mediator's reality checks only go so far, and the mediator must stop short of pointing a finger at the "damned fool who has lost touch with reality." After all, about the time he or she did so, a jury will bring in one of those unexpected zero or blockbuster verdicts, thus shattering the mediator's credibility in the eyes of counsel and client. In addition to which it is not the mediator's job to set a value on a claim.

In Alice In Wonderland a character says, to the effect, "A word means what I say it means, nothing more nor less." Just so, a claim is worth what either side says it's worth, nothing more nor less. Even if one or the other turns out to be dead wrong.

Fortunately, we do not see many of these cases where the mediator, trying to restore humor to the proceeding, is forced to say: "Now that I know both sides' positions are outrageous, let's move on." Even then, more often than not, they do move on, and, more often than not, to a settlement. This is in the nature of clear, knowledgeable heads and of reasonable attitudes toward the mystery and unpredictability of jury trials.

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01/03/99

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