Judge Settlements Versus Mediated Settlements


The jury was in the box. The plaintiff was the older brother of the defendant, a lawyer. The family was divided in its seating in the courtroom—like at a wedding. The plaintiff was a carpenter by trade, and the family had grown in wealth from the parents of these litigants who created a pot into which went the profits from trading in real estate. The older brother was suing his sibling for a larger share in the profits of the sale of a condominium in New Jersey. The defendant-lawyer-brother claimed that there were no more profits to yield up and that the plaintiff had received the lion’s share of the transaction.

I thought, “What a destructive lawsuit this is for one brother to accuse the other of fraud and bring the rest of the family into the fray.” It was not the merits of the claim or defense that impelled me to call the parties into the robing room for a settlement conference but, rather, the polarization of the entire family that the case had created. After securing permission to deal with the lawyers and clients ex parte, I conferred first with the plaintiff and his lawyer. Sensing that there was more to this lawsuit than the legal issues and the pleadings, I asked the plaintiff why he was driven to sue his younger brother, a lawyer. His answer revealed what actually was going on and gave me the key to settlement.

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