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What can two warring claimants do with a million-dollar baseball? A. Agree to donate the prize to charity and feel good about themselves forevermore; B. Have a fist fight and the winner gets the ball; C. Compromise at mediation so that each comes out a “partial” winner; or D. Go to court where one will be declared the winner (empowering him to select option A) and one declared the loser. Of course in this day of school shootings, sniper killings, terrorist bombings, poverty, economic turmoil and an impending war, no surprise the parties to the baseball brawl chose option “D.” How enlightened. BASEBALLS DIFFER FROM ORANGES The story is often told in mediation training of two children “positionally” arguing over a solitary orange. If they chose litigation (option D), one would be awarded the orange and one wouldn’t. If they chose mediation (option C) and identified their real interests, they’d learn that one child wanted the orange for juice and the other sought the rind to bake a cake. A win-win situation. With a baseball, you can’t separate the horsehide from the core and still have anything of value. Even so, to resolve the baseball brouhaha, we still need to discover and rank the parties’ real interests and objectives: � Notoriety? � Wanna be a millionaire? � Bonds’ 73rd on the fireplace mantle? � Don’t want the other so-and-so to have it? � Having the ball six months a year not enough? In litigation, none of these very different objectives will be taken into consideration by the trier of fact. In court there is only one outcome in this type of case: win or lose. The parties to the baseball bauble showed a flash of good judgment: whether voluntarily or with a push from the PJ, they agreed to try mediation. They also chose as mediator cream of the crop Coleman Fannin. So what happened? The retired judge settles multi-party, multi-million dollar, mega-complex cases day in and day out. Why didn’t this case settle? Because mediators don’t settle cases, the parties do. In truth, The Recorder’s Scott Graham’s recent jab — “Coley Struck Out” — reveals a lack of understanding of the mediation process, rather than an accurate take on Judge Fannin’s skills as a mediator. The Gypsy Curse: ‘May you have a lawsuit in which you know you are right’ When parties “know” that they are right, then all the powers on earth can’t achieve a settlement. Mediation by definition requires some compromise on both sides –not necessarily a lot, but some. I am reminded of a recent mediation at which a foreign-born seaman refused to accept his own attorney’s settlement recommendation nor consider any principled reasoning from the mediator. He was confident that Allah would take care of him. He was then informed that Allah would probably not be in the jury pool. (Ultimately a relative was identified in North Carolina whom our seaman trusted. After a phone call the matter was settled with the assistance of this agent of reality.) The point is that mediators can only do so much. It is the parties’ job to settle cases. After Judge Kevin McCarthy reviews the videotape and hears testimony from law school deans, baseball umpires and a variety of percipient fans, he will decide whether every foul ball and homer is a free-for-all or possession subject to judicial review. Some precedents should be avoided. A SUGGESTION FROM THE BLEACHERS Here’s what the parties should do. Contact the producers of “Judge Judy” and negotiate $200,000 paid to each party to submit the case for decision. (No attorneys fees, no witness expenses, videotape allowed.) In advance of Judge Judy’s decision, agree the winner will donate the ball to the Make a Wish Foundation, probably generating more than a million dollars at auction. The parties will become celebrities admired for their generosity and featured on “Larry King Live,” “Oprah,” and the rest of the talk show circuit, collecting more fame and fortune along the way. (Their photographs with the baseball and Make a Wish Foundation beneficiaries will be proudly displayed on their respective fireplace mantels for generations to come.) By adopting the right mix of charity and compassion, these struck-by-lightning litigants could become greater heroes than the ball players they cheer from Pac Bell Park’s stands. Alas, I fear this solution is far too reasonable. Only reasonable people can settle their differences without a fight. Instead these erstwhile very deep right fielders have taken their cue from the courtroom warriors who seem so prevalent among us. We now have a fight-to-the-verdict and a decision that will be tossed to the appellate courts. This “American Pastime” souvenir will eventually be denigrated to a symbol of anger, hatred and greed. So good luck to the parties in court! But remember, Judge Fannin didn’t strike out, the parties did. Jerry Spolter, of Spolter, McDonald & Mannion, is an independent mediator and member of the American Board of Trial Advocacy and the National Board of Trial Advocacy.

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