A few years ago, the parties in a business dispute agreed to schedule the matter for mediation. Much to their chagrin, the only available date when all parties could attend was December 22 – three days before Christmas.
The case was an acrimonious one, with personal accusations frequently leveled at one party and returned in kind. Most of the principals and lawyers had to travel from out of town to the mediation and the impending holiday only exacerbated the tension between them. Lawyers on both sides predicted a long and ultimately unsuccessful mediation with little chance the case could be resolved.
The session began in the morning and ran true to form. By late afternoon, coats and ties had long been discarded and, despite the mediator’s best efforts, emotions took over. Both sides appeared ready to declare an impasse.
As the mediator was about to leave a private caucus with one party to deliver what had been represented as a final settlement offer, one of the principals (Mr. Smith for purposes of this story) said, “tell them if it makes any difference, I’ll throw in a Tickle Me Elmo doll.” This had nothing to do with the subject of the dispute and the mediator, confused by the statement and thinking it was a dumb idea, simply made a note and left the room.
The purported offer, sans Elmo, was delivered to the other party, setting off another round of recriminations and rejections. After letting this go on for several minutes, the mediator, attempting to diffuse the tension, interjected, “well, Mr. Smith said if it matters, he’d throw in a Tickle Me Elmo doll.” The vice president of the company, Mr. Jones, sat straight up in his chair.
“What did you just say?” he asked. The mediator sheepishly repeated the Elmo offer.
Mr. Jones had an eight-year-old daughter. The only thing she wanted for Christmas was a Tickle Me Elmo doll. Unfortunately, every other child in America did too, and Mr. Jones had not been able to find one. He tried to buy one on eBay, last offering over $800 only to lose the doll at the very end of the auction.
“Tell them that if they will put that in writing, we’ll accept their offer,” he said.
The written mediation agreement was prepared, including a provision that Mr. Smith would personally send Elmo to Mr. Jones via FedEx the next day. Mr. Jones’ daughter got her wish and the case settled.
This is a true story. While a fun one to tell, illustrates a broader point. Often, a litigant’s true agenda remains hidden in mediation. In some cases, things other than money, such as acknowledgement of responsibility or an apology, can be just as important and a significant motivation to resolve a case. A patient and persistent mediator willing to search for the hidden Elmo can break the impasse and resolve a difficult case.