Mediating a “Mission Impossible” False Claims Act Case

I recently had the opportunity to mediate a False Claims Act case that was described in advance as a “Mission Impossible” matter.   In fact, the potential for a successful resolution seemed so unlikely to the parties, that some of the participants actually apologized for bringing me in during private and joint pre-mediation discussions.

The pessimism of the parties notwithstanding, I was pleased at the chance to put my knowledge and expertise in False Claims Act cases to use.  Besides, I figured that with expectations so low, the parties were unlikely to be disappointed with my services.

Pre-Mediation Calls Helped Set the Tone

Pre-mediation calls are an important part of the mediation process insofar as setting the tone and agenda, and for the educational purposes they serve.  In this case, however, I believe they were also helpful in setting a positive tone for the mediation.  That is, while the parties consistently maintained a dim view of the chances of success, I maintained a positive and optimistic attitude which I think carried over to the mediation.

Patience Was the Key to Successful (and Surprising!) Outcome

There are many books about mediation.  They will generally explain the process and discuss the various techniques available to mediators, with the more advanced books placing greater emphasis on strategy selection and optimization.  It would be nice to take credit for selecting a brilliant strategy which turned out to be the key to success in this case — but that simply didn’t happen.  The key in this case, it turned out, was patience.

As is often the case with complex cases, there was a lot for one side to sort out before we could even begin the process of sharing information and exchange offers.  And while it would have been easy for one or both of the parties (or the mediator) to chuck it in, everyone stayed focused on the goal.  Indeed, although this seems counter intuitive, I think the long delays during the day may have tended to give the sense that something was happening even during periods of time when, perhaps, it wasn’t.

Even though it took quite a long time before the parties began to feel that there was a reasonable chance the case really could be resolved, they agreed to stay at it as long as there was the sense of some progress.  And stay the course we did.  Planes flights were rescheduled; hotel reservations were extended; and we stayed at it all the way to tomorrow.

It was the Litigant’s Dispute — and their Settlement

The other takeaway from the case was that it was the litigant’s dispute and their settlement to reach.  At the end of a long long day, it was the litigants that came up with the key concessions and answers, and it was their settlement.  So while I was proud and excited to have contributed to mission success, and I gladly accepted any praise offered, I knew that they had done the heavy lifting and that they deserved the credit.


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