After perfunctory greetings in the lobby, the mediator announced, "Y'all ready to go? Let's do it."
Gathering in the largest conference room, Ross outlined the process:
This is an informal meeting, he said, there are no rules and regulations. It's a collaborative effort. The sides work together for a resolution. "I am impartial to the parties' interests," he said. "I walk the center line, no matter what my feelings. If you look at the process as a car, I'm the oil that keeps the engine running."
Ross ran through the advantages of mediation. It comes with complete confidentiality: Nothing said can be used in court; nothing ends up in public records. In mediation, the parties get to take charge, to control the outcome, whereas in civil suits they often become spectators. "The legal system is designed to keep us in suspense until the very end, when a judge or jury decides," he added.
He warned that neither side would walk away totally satisfied, that the exercise was not designed to declare an absolute winner. Each of the parties would have to make concessions, he counseled, but in return they would be rewarded with closure.
Then he got to the good stuff. Settling the case would save the parties vast sums on legal fees. Just as important, it would spare them the time and stress that come with a lengthy legal scrum. Then he added an element of fear, which he would give in measured doses throughout the day: "It's apparent that this is a lawyer's-annuity-type situation. It could keep lawyers busy for years. Legal fees could actually eat up all the assets. It sounds crazy but I've seen it happen."
Seated at the table, Wallace and Cavonis made informal opening statements. Ross drew a line down the middle of a legal pad and took notes. Throughout the day, he would have to ingest vast amounts of complex information and legal arguments on the fly. He also had to be an astute listener, interpreting the subtext of comments and reading body language.It became readily apparent that Donald, the grandson, would be the wildcard. The 32-year-old history teacher had invested hundreds of hours in research and was convinced of the rightness of his position. He wore a near-constant frown, pursed his lips and occasionally got flustered when he spoke. Donald was not a trustee, however, and thus wouldn't officially be part of the outcome. His uncle Edwin, who had experience with international negotiations, took a conciliatory tack. Jan played it closest to the vest. Was she eager to settle or would she follow her son and take a hard line?
On the opposite side sat Angela, a prim, soft-spoken woman with a face powdered to near alabaster. She wore a meek expression. Her lawyer's measured tones seemed to soothe her.
After each side laid out its case, they adjourned to separate rooms. Ross moved back and forth, asking questions, drawing out feelings and agendas. Where could he find common ground? How could he frame the issue outside the realm of dollars?
He discovered that both sides wanted to make sure 93-year-old Sarah got to finish her life in the nursing home. Neither party would risk having her moved into a second-rate facility. What's best for Sarah? That became one of Ross' favorite themes. The mediator also found that the adversaries agreed on one crucial fact: Joseph's use of Gladys' trust money had been improper.
One role of a mediator is to point out the weaknesses in each side's case. Ross did not want either to get too confident, which might seduce them into stiffening their position. But it did seem clear early on that Joseph's heirs held the best hand.
Their father had, in fact, misused his late wife's trust. It did not matter whether his second wife Sarah participated; she had, in legal terms, been "unjustly enriched." Any way you added it up, her illicit benefit from Gladys' trust was greater than the one-third she was due from Joseph's estate.
Edwin, Jan and Donald had weaknesses as well. A long litigation hurt them more, held up the money longer. During an extended battle, Sarah would still be comfortable in the nursing home.