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CONTROLLING YOUR OWN DESTINY AT MEDIATION

Controlling Your Own Destiny at Mediation

By Steven N. Joseph

(Please note that the views expressed in this article are written as my own views to provide guidance for defense counsel, and do not in any way, reflect those views of Western World Insurance Company, Validus Specialty, or AIG.)

Many defense counsel suggest to a client or claims professional to go to mediation as a strategy, but they speak in terms of mediation, itself as the strategy, and not incorporate any strategy into the mediation. The destination itself is not a strategy. You would not say your strategy is to try a case. You would be saying how you plan to try a case.

Or, worse, they abdicate control, and they suggest that we will a how a mediator sees this case. The purpose of mediation is that it is the best opportunity for a clients, a claims professional and their attorney to control their own destiny, and this article discusses how you go about doing that.

ü The feeling out process.

After the opening presentations are completed, if there is one, the mediator will break up the parties, and usually meet with each side separately in private caucus sessions. While most mediators will use the initial caucuses as learning sessions, some mediators may immediately attempt to probe exactly how much the plaintiff is willing to take, and how much the defendant is willing to pay. Since this is a mediation and not a settlement conference, unless the mediator comes in offering a substantial move off of the previous position by the other side, you should avoid the temptation of providing an answer to this question.

The clients on each side want to feel a sense of justification for any resolution that is achieved. They are also exchanging their “day in court” for this day of mediation. Therefore, you should allow your client to use the initial meetings to vent any outrage and frustrations he or she may feel that has been brought on by whatever wrongs the adversary has wrought.

A good mediator will patiently listen and show understanding to the frustrations your client may have brought to the mediation. This is all a part of the mediator’s attempt to win the confidence and trust of the parties.

The early caucus sessions should not be used as a question and answer period with the mediator asking all the questions even though this is clearly going to be the mediator’s primary agenda. This is also your opportunity to focus the mediator in the direction you want to go. In the initial private caucus session, you should point out the key “roadblock” issues that you believe the other side will have difficulty addressing. Always assume that the other side comes in with a firm position, and the mediator alone will not know how to move the other side off of that position. Direct the mediator to the weaknesses of the other side’s positions. If these points are presented by the mediator in a “neutral” manner, you may be successful in achieving movement from the other side.

You have now set the groundwork to have the other side make the first move in the negotiating process.

I was at a mediation in Minot, North Dakota on a case that was venued in Indian Court. So, in the initial private caucus session, I started explaining to the mediator what a defensible case we had. He looked at me with his head shaking, and told me to stop.

“There’s never been a defense verdict in Indian Court.”

Never?

Never?

Not one?

Zero.

Oops!! I guess we better get this one settled.

You guessed right!”

I turned to defense counsel, and asked:

“And how come I find this out now?”

(*The plaintiff also happened to be the daughter of the Chief Justice of the Indian Court!)

ü Educate the mediator on any difficulties the other side may have with the trial option.

If the mediator were put in the position of decision-maker, the focus of your presentation would be solely on the merits of the case. However, since the mediator’s primary role is that of a facilitator, any factors that would make the trial option unattractive or even unrealistic for the other side should be identified for the mediator. These factors were undoubtedly the reasons that the other side accepted (or made) the offer to mediate. The case may be one that is too expensive to litigate. The opposing party may be in dire financial straits or is advanced in age and doesn’t have the patience or ability to wait a few years for a trial date. The trial may be one that would take four weeks; and the opposing party can’t be away from his or her business for that long a time. A trial may bring on unwanted negative publicity to the opposing party.

These arguments, which have nothing to do with the merits, may be the ones that persuade the other side to accept a deal substantially less or substantially more than what their own mediation resolution goals may have been.

ü Do not make a potential favorable ruling on a summary judgment motion the focal point of your position.

Many attorneys go in to a mediation and make the mistake of arguing that if the other side does not agree to their settlement proposal, it faces having a summary judgment entered against it. While this certainly can be made a part of your negotiating strategy, it should not be the focal point.

There are two problems with making this the focus of your negotiating position. The first is one of credibility. If you try to present yourself as having overwhelming confidence that you will be successful with this motion, the mediator may rightfully question, “why are you here?”

The second problem is that it is unlikely that you will be persuasive enough to convince the other side of your perceived chances of success. If the other side believes that you, in fact, will not be successful, but feels that you are only negotiating with discounted numbers that reflect potential success, it may decline to negotiate seriously until after this motion has been decided. If the motion is then denied, the other side will rightfully expect that your client will negotiate in the settlement range it originally proposed at the mediation.

If you do bring up a motion for summary judgment, make it part of a larger picture that you are painting. The point you are making is that you get a lot of bites at the apple, and the fact that you can even file a summary judgment motion shows that you will be taking big bites!

I went against my own rule a few years ago at a mediation in Seattle. Here’s what happened. We had filed a summary judgment motion, and a day before the mediation, the Judge who had our motion indicated that he was not going to rule on our motion until the following Monday.

We had thought that this was an excellent sign. If the Judge did not like our motion, he could have simply denied it, and wished us the best at mediation.

The mediation involved a number of professionals including our insured. The mediator came into our room, and made an inquiry “All the other professionals offered their policy. Where’s yours?” Of course, I had to explain to the mediator that we felt pretty good about our summary judgment motion.

He didn’t want to hear anything about that, and of course, the case did not settle.

Our summary judgment was granted the following Monday.

ü Focus your discussion on facts you can prove to a jury.

It is more important to focus your arguments to the mediator on those factual issues that you believe you can prove to a jury. Moreover, it is important to express your position in this manner. This will present your side as one that has considered the trial option; it also addresses a challenge to the other side to convince the mediator of facts that suggest the contrary. If you have selected factual issues that cannot be disputed, you have placed a significant burden on the other side to move closer to your settlement position. 

If I am trying a case, I would love to be able to have the case that I can tell a jury the promises I can keep, and of course, I am not the finder of fact. The folks on the jury are, and if I keep my promises, they should find for my client, and if I can’t I want them to find for the other side.

And of course, after I tell them the promises, I will tell them that these promises are iron clad, rock solid, and that I am so confident that I will keep my promises, that I am inviting opposing counsel to stand up during my opening statement and tell the folks on the jury that I can’t keep them. And, of course, he ain’t standing up!!

In a trial, I am making promises that I know 5000% that I will keep. In a mediation, I have more leeway. I believe I can keep these promises. It’s a good faith belief, but it doesn’t have to be a 5000% belief.

The “promises” speech deals with the Opening Statement at a trial. But there is the “common sense” speech that mirrors the Closing Argument. You like to have the kind of case where you can tell the jury that the case is your favorite case to try…not because of fancy experts or complex legal issues…but rather, it is about plain and simple common sense. Whenever I can rely on the common sense of a jury, the jury will always do the right thing!

There is a closing argument piece to this as well. I would like to tell a jury that this is my favorite case to try, and it is not because of fancy experts or sexy issues. It is because I can rely on the common sense of a jury and whenever I can rely on the common sense of a jury, juries do the right thing. 

So, if I can attach my position to a common sense story in a mediation, I have one step up in the process.

ü Identify to the mediator in the early caucus sessions those issues or items that are either “not negotiable” or that limit your ability to negotiate.

It was pointed out above that in the early caucuses the mediator will be trying to ascertain the negotiating latitude of the parties. The mediator will use this information in trying to formulate the various ways in which the dispute might be resolved. This process begins before the mediator even starts to solicit settlement proposals. Thus, it is important for the attorneys in the early caucuses to advise the mediator of those points that are “non-negotiable.”

Such issues or items should be identified from the outset for two reasons. First, if you allow such issues to become part of the discussion, you give the issue credibility for consideration as to what the ultimate settlement number may be.

For example, suppose you represent the interests of an insurance company. The plaintiff’s damages may encompass both insured and uninsured portions of a recovery that would be collectible after a judgment taken at trial. If the discussion of the issues at the mediation include the topic of what uninsurable damages may be recovered at trial, the plaintiff and the mediator will rightfully assume that this uninsured portion of a recovery is being given serious consideration as part of your settlement offers.

An example from the plaintiff’s standpoint is the problem of existing liens on any monies that are eventually recovered. A plaintiff may have unpaid medical bills or a worker’s compensation lien that will have to be satisfied before the plaintiff will realize any benefit from the settlement. The plaintiff’s counsel will need to address the issue that any settlement amount will have to be greater than the existing liens if the plaintiff is to have any incentive to settle at mediation.

The second reason that this is so important is that you want to be able to steer the discussion into “your ballpark” as much as possible, and away from what you may consider to be collateral issues that would be unfavorable for your client. 

For example, your client may have an honest fear of negative publicity that would result from a trial. The other side realizes this, and of course, during the mediation, will bring this up as an issue, and a reason for your client to accept what you believe is an unreasonable demand. In another example, the plaintiff may be advanced in age. The defendant will want to use this issue to its advantage by arguing that the plaintiff may not be in sufficiently good health to endure the rigors of battle in a courthouse that may be years away.

The “non-negotiable” card must be used with substantial forethought and should be supported by factual statements. This is because the other side is likely to question why a settlement cannot be reached that encroaches on a “non-negotiable” matter. The mediator must be given ammunition that not only satisfies the mediator, but will be sufficiently convincing to the other side to cause it to back away from the issue and seek other ways of resolving the dispute.

ü Draw a negative inference to any “new” surprise information but be prepared to give a small discounted value to “new” surprise information.

By the time you get to the mediation, hopefully both parties have carefully evaluated each other’s position, the evidence that has been presented, and based on the information at hand, each of these parties have hopefully come to a logical reasoned based decision on the value they have put on the case, and are ready to negotiate in this range.

However, surprises can happen at mediation. For example, one party comes in, and has an additional $100,000 in special damages, and while they may have conveyed a lower settlement range prior to the mediation, the demand is now substantially increased in view of this new information.

You now have a few choices. You can tell the mediator that based on this new information, we have to declare a temporary impasse, review the information, possibly even take a number of depositions based on this new information, and reconvene at a later date.

That may be a good negotiation threat if you can look at the new evidence and quickly determine that the evidence is rather questionable. You are calling their bluff. However, it may be difficult to determine the quality of the information in the small amount of time allotted at the mediation. If it turns out that the new evidence changes the case, you can expect to return to the mediation months later negotiating at a new higher (or lower, if evidence comes from the defense side) range based on the confirmation of the evidence.

The new surprise information should be strongly challenged based on the timing that the evidence was disclosed. Find out exactly when this new information was obtained by your opposing party. Chances are that the information was available a substantial time prior to the mediation, and was not disclosed timely.

Now, the next step is to ask the question as to why the information was not provided. Answer your own question. If this information is a “game changer” as the other side would want you to believe, it is your experience that it would have been provided exactly at the time it was available to your opposing side. The fact that this information was only first provided at the mediation calls the new information into question.

Be careful here not to give the new information absolutely no value (unless what you have been provided with does not have any information of merit). If you do, that may put the other side in a deep corner in which they may have no choice to declare an impasse, and you can end up spending a lot of money doing the additional discovery and simply coming back months later, and negotiating in a completely new higher (or lower) range.

Turn this into an advantage. The reason that new surprise information is provided on the day of the mediation is that it takes away the attention from other weaknesses in your opposition’s position. Make it clear to the mediator that this is exactly what your opposition is trying to do.

Also, indicate that you are willing to give it some small consideration in your negotiation. So, you are taking control of the issue, and setting the terms of the negotiation back close to the range you have in mind. At the same time, you are allowing the opposition that they have gained something for themselves by providing the new evidence.

ü Set the pace of the negotiations.

The mediator’s primary and continuing objective is to get one party to gradually pay a little more money, and the other side to gradually agree to take a little less. If the parties each begin with reasonable offers and demands, the negotiations on dollars can begin right away to neither side’s displeasure. However, it is more likely that the two parties will enter the negotiations far apart, with both sides seeing the other’s position as unreasonable or even outrageous. In this scenario, the danger of getting into the numbers game too quickly is that both sides increase the chance that the resolution, if one is achieved, will end up “splitting the baby.” It is for this reason that many mediators do not even seek to elicit settlement positions at the outset.

Because of this danger, you should try to control the pace of the negotiation instead of having the mediator do it for you. If the mediator presses your side to come up with a number before the parameters of the negotiations are established, your response should be: “While we come to the mediation to negotiate in good faith, and we are prepared to make a substantial move off of our negotiation position, we do not believe it would be advisable for us to make such a move at this time. The other side has not made a reasonable offer/demand, and we believe that, after you have had an opportunity to discuss the weaknesses of the other side’s position as well as exploring the key issues with us, we may then know whether there is a basis for modifying our position.”

Attorneys should not assume that they are required to rush into making proposals in order to keep the negotiations going. Indeed, it is not uncommon for there to be little or no movement in the positions of the parties through the early rounds of caucuses. In fact, many mediators don’t even press the parties for concessions until after several hours of negotiations.

On the other hand, they will try to end each caucus session by posing an issue to the party, requesting that the party reflect upon it while the mediator is speaking to the other side. This technique not only may help to prompt a further concession during the next caucus, but also keeps the party focused on the job of resolving the dispute while the mediator is engaged in discussions with the other side.

ü Understand that no movement may be better than making a very small move.

Sometimes, a mediator may attempt to elicit a substantial concession from your client. If you are not ready or willing to make such a move, you may make one that is insignificant in an effort to send the message that your client cannot be persuaded into making a major concession.

Such an insignificant move could be counterproductive, as the other side may conclude that you are not negotiating in good faith. In the alternative, the opposing party may be encouraged to make its own meaningless gesture. The mediation process can then quickly disintegrate, with the parties concluding that the process is a waste of time. Thus, any bad feelings that existed before the mediation will now be hardened.    

On the other hand, if the mediator asks that your side to make a small, insignificant move, you could set off the same chain reaction. In either case, you should ask the mediator what he or she thinks will be gained from such a move and why the move should be made at this time. The mediator may have discovered that the other side has become unduly frustrated and is about to walk out or that the other side is closer to your settlement position than you think.

If the mediator does not come up with a good answer to this question, advise the mediator that you do not believe that such a move will be productive at this time, but that you will be prepared to make the requested move after you hear more about certain issues that concern you.

The “consecutive unreciprocated concession” can be done successfully, but it should not be done unless it is done with great care.

First and foremost here, if I am doing this, I have to be in a position where I still have a lot of room to move even after the consecutive move. Usually, this comes when the parties are still far apart so even after this move, the parties will be far apart. So, if this is your last move, you may be wasting your time, and you can simply say that you are at an impasse.

When I do make the consecutive move, I won’t suggest it on my own. The mediator suggests that I make the move. I question the mediator on what he or she will do with it, how it will be presented, and make it absolutely clear what my expectations are if I go ahead and make this second concession.

I am having the mediator sell this to me so I want to see what the mediator is offering. Quite often, the sale is made when the mediator will tell me up front that if I make this move, he or she will work very hard and feels quite confident that there will be a reciprocal move on the other side.

 Once I am absolutely satisfied what I am being sold by the mediator and with the message that the mediator will take to the other side, I will make the move.

I find that the mediator will come back with what was promised to me – a substantial move on the other side. This makes sense because think about the pressure that is on the mediator now. If the mediator comes back with nothing, the mediator may rightfully believe that he or she has lost credibility for later sessions when approaching me with further concessions.

ü Take full advantage of a good client and your opposition’s bad client.

Trials quite often are popularity contests, and who the jury likes better can be more important than the facts. There are two questions you should think about. First, will the jury have a strong desire to compensate this particular plaintiff?  If the plaintiffs are widows and orphans, they will likely have that desire just to put money in their pockets.

The second question is, “will the jury have a strong desire to see this particular defendant lose?”  Sometimes, the jury award can reflect the fact that they just didn’t like the defendant or worse, they just couldn’t stand the attorney who was making arguments that might belong on a law school exam, but not in a courtroom.

In many instances, the demands and offers being made in a mediation reflect the view that a jury will love their client and hate the opposition’s client. Too often, this is far from being the truth. Make sure this fact is recognized, and insist that the negotiation should be with numbers that are more reflective of a realistic popularity contest.

ü Never respond to threats that the other side is prepared to leave unless your side makes a substantial “next move.”

Sometimes when an adversary becomes unhappy with the concessions you are making in the mediation process, it sends a message through the mediator that “unless your side makes a substantial move off of your settlement position, we will walk out of the mediation.” 

Always respond to this tactic by calling the opposition’s bluff. However, do it tactfully. Indicate to the mediator that you cannot make response to threats the basis of the negotiation. The issues, and only the issues, should be what move the negotiation. Remind the mediator that it is his or her job to keep the parties focused on the issues, and away from unilateral threats. You may also indicate that there is still room in your settlement position, but that you are yet to receive justification for making a move. Lastly, indicate there is still plenty of time for the parties to reach a mediated settlement of this matter.

Of course, the mediator may, in fact, be correct in his or her assessment that the other side will terminate discussions if a significant concession is not forthcoming and that the other side is not prepared to make any similar concession until after your client has modified its position. This assessment should be probed to determine whether or not it is realistic or whether the mediator has been taken in by a “grandstanding” tactic of opposing counsel.

If you conclude it is the latter, you have little choice except to call this bluff which you can do by pointing out that even the last offer you have made is better than a litigated result, taking into consideration the time, the additional costs and the uncertain outcome.

Even if you conclude that the other side may be becoming frustrated with the seeming futility of the process, you should not feel constrained to respond with a significant concession. Instead, you should ask the mediator to convey your willingness to make a substantial concession if the opposing party will address how it plans to overcome certain specified strengths in your case. In this way, you are conveying your willingness to make the concession the opposition is looking for while at the same time sending the message that concessions are won by addressing the issues and not by making threats.

ü Indicate that you are negotiating their best deal, not your best deal.

I never expect to make a deal if I am making arguments why it is my best deal. For some reason, I have never had opposing counsel walk into the room, and tell me how good they are going to make me look. For some reason, I find that it is their job to make me look as bad as possible.

That is why I have to make arguments why whatever number I am offering can be considered their best deal. While I am doing this, I challenge the other side to do the same thing. If we are trying to negotiate each other’s best deal, we can usually find room for resolution at the end.

Note that many times, a negotiation results in failure because this is not done. The plaintiff’s attorney is demanding $5 million when the best they can do at trial is $1 million. Well, the other side doesn’t have to do a lot of thinking on that one. The better deal is to try the case.

Similarly, a very low offer is made. “We will pay you $5 thousand to settle. Not a penny more.” Well, the other side will know that it will cost you $20 thousand to try, and the worst they think they will do is get an award of $50,000.

Neither party will get a deal if they are not cognizant of the other side’s best deal.

ü Clearly identify to the mediator the issues that, if clarified by the other side, will most likely result in movement by your side.

Some attorneys may be reluctant to put any of their cards on the table since they believe, by doing so, they will disclose their trial strategy which could be detrimental to their client in the event that the case does not settle. While there is no expectation in a mediation that an attorney will provide his or her trial plan, it is also not reasonable to expect one side to make a substantial concession if the other side has nothing to show.

Equally important, you must be prepared to show that you have given serious thought to the trial of the dispute and have fully assessed that alternative. It is difficult to convey that impression or the impression that you have even assessed the case if you are not prepared to discuss the merits. Thus, if you are unwilling to reveal the issues that you intend to present at trial, you are likely to be condemning your client to such a trial.

In addition to educating the mediator on the weaknesses of the other side’s case, you should identify for the mediator those issues that need to be clarified by the other side, and which, when clarified, may result in movement by your client.

This is an effective negotiating technique if the issues you intend to establish, for the purpose of getting the other side to move, are issues that are easier to establish than those issues that your adversary may attempt to establish to obtain a concession from your client.

ü Review the message.

After the mediator has completed the discussion with your side, and just before he or she proceeds to begin discussions with the other side, review with the mediator the issues that you wish for the mediator to initiate on his or her own behalf, and what messages or issues you want to direct to the other side on your client’s behalf.

The messages that you are sending, and the issues that you are identifying for the other side to address, should focus on the rationale for the position you have taken. You have indicated what information your client has based his or her decision on. You can identify issues for the other side which suggests that if additional information is given, you would consider moving off of your position. 

For the mediator, you are providing the ammunition that, in the role of devil’s advocate, the mediator can question the premises on which the other side has come to its position. If the mediator can persuade the other side that its own reasoning is faulty, the mediator can get movement from the other side on this basis.

“Arguments vs. Facts”

I recently had a conference call with defense counsel in preparation for what we felt was going to be a very contentious mediation. The attorney spent a full half an hour going over each of the arguments he was preparing to make.

When he was done, I told him that the arguments he was going to make are all excellent, but I asked him to restate the arguments as “facts” he thought he may be able to establish.

When he was done, I asked him what he thought was the more powerful presentation. He admitted that by presenting his argument as facts, the arguments had a greater level of authority that it had just 20 minutes before when they were just plain arguments.

There will be, of course, contested facts, but when you verbalize facts as arguments, you create an inference with the mediator that there is a hidden concession in your words. You concede that you just may be wrong.

ü Identify the “home run.”

In the joint meeting of the parties, you will have laid the groundwork presenting the merits of your client’s position and in the initial private caucus sessions you will have identified the weaknesses of the opposing side’s position with the mediator. There may have even been initial moves off of the settlement positions that the parties took going into the mediation, but the moves have been in such small increments that it suggests to both parties that the mediation is beginning to look like a waste of time.

This is when you may want to talk in baseball terms. Remember, you should always be presenting your settlement position as an alternative to a lengthy trial down the road. As such, you may want to propose that both sides should examine the issues that will be presented to a jury, and try to figure out what damages, if any, a jury may award if the plaintiff wins. This is what can be called the “most likely home run.” 

The “most likely home run” will be very different for both sides. The plaintiff’s attorney’s home run will include prejudgment interest and punitive damages. The defense attorney’s home run will include a reduction of any award because of the plaintiff’s comparative negligence. The plaintiff may take a chance at losing some credibility if its attorney tries to argue a number well above the range of an award that would be likely given by a jury; and similarly, the defendant can lose credibility if he argues that the likely award, if any, is unreasonably low.

The mediator can then form in his or her own mind the range of where a reasonable home run for the plaintiff may be. The parties can then focus their discussion with the mediator how big the “strike out” zone may be that creates the risk for the plaintiff that there will be no recovery.

No one on the defendant’s side can reasonably be expected to recommend that the plaintiff simply be given a home run. Instead, the defendants should argue that if the plaintiff wants a home run, the plaintiff and his or her counsel should walk over to the ballpark (courthouse), put on their uniforms, grab the bat and try to hit one out.

At the same time, the plaintiff’s attorney’s position is that it is unlikely that his or her client will strike out and that it is not reasonable for the defendant to expect that the plaintiff will agree to strike out without even taking a swing at the ball. Thus, the scope of the negotiation should focus on the area between what a reasonable defendant might conclude the plaintiff might take and what a reasonable plaintiff might think that the plaintiff might win.

After the strike out zone is determined, the next issue is what it will take each party to get to the ballpark. What is it going to cost? Both the plaintiff and the defendant will have to confront the time and money that will be spent to get there. The ticket to the ballpark can be very expensive for both sides. These cost considerations, thus, should narrow the strike zone, or the range for negotiation.

Whether it is a plaintiff or a defendant that you are representing, by using this analysis, you are beginning to make the argument that the resolution you are going to propose at mediation will be the best net result the other side can hope for.

In this regard, it should be appreciated that mediators will try to assess the reasonableness of the parties’ offers and focus their energies on the party whose offer seems to be the less reasonable. It’s somewhat like an appellate argument. If the mediator is spending a lot of time with you and your client, it’s not because the mediator prefers you or your position to that of your adversary, but rather, it’s because the mediator believes that you and your client are more in the need of a reality check. Some mediators put it this way, “The party that makes the first truly reasonable offer achieves an upper hand because it causes me to focus my attention on the opposing side.”

When I talk about the “reasonable home run,” I am quick to always point out that it presumes that the attorney on each side will do a fine job for their client. It is never about my attorney is better than your attorney.

However, when I talk about the reasonable home run, I do talk about the case in terms of what position it would be in the line-up. Are we talking about Barry Bonds in the clean-up spot, or is this the weak hitting number eight hitter?

If we have the number eight hitter, it is a different case than number four. However, we are focusing on the case, and not the abilities of opposing counsel.

In discussing the home run, I am also reminded on the questions they ask to mock juries when doing jury analysis: “Do you have a strong desire to compensate this particular plaintiff?” The thought here is that with a very sympathetic plaintiff, a jury may not care about the facts, but would just want to put money in their pocket. The second question is “whether there is a strong desire to see this particular defendant lose”? Here, a jury may just want to stick it to a jury. Roles and questions can be reversed depending on the case. But, this is something to think about when presenting “home runs and strikeouts”.

ü Prepare some arguments that you believe will not be anticipated by the other side, and save them for the later caucus sessions.

Just as you and your client have thought about what an acceptable range of the settlement amount may be, the other side will have thought about their own acceptable range. If the two ranges overlap, little creative thought may be required to resolve the case. However, if the two ranges not only do not overlap, but are far apart, you have to think of arguments that may cause the other side to shift their acceptable range closer to your client’s acceptable settlement range.

The other side will undoubtedly be aware of all the arguments that could have been learned through the discovery that has taken place, or that may have been briefed for a motion. Thus, the most creative arguments are likely to be found in collateral issues that affect the other side’s decision-making process, but which have nothing to do with the merits. This might include time or monetary pressures affecting the other side, or the increasing likelihood that key witnesses may become unavailable.

Other creative arguments may be found through surmising what future discovery may do to the other side’s position in the case. If the other side learns of something new, it should be expected that it will reassess its settlement position.

Again, the focus is on what makes the settlement position being offered a better alternative to the other side than a litigated solution. Thus, any fact that decreases either the likelihood or magnitude of the victory being sought by the other side is likely to move that side closer to accepting your client’s offer. While it is perfectly appropriate in the early stages of negotiation to allow the other side to believe that more favorable offers will be forthcoming as the mediation progresses, as more fully discussed below, at some point the attorney must convey the impression that the offer on the table is the only alternative to a litigated solution.

ü If there is another day scheduled for the mediation, do not allow the mediator to caucus well into the night unless substantial progress is being made.

Even if there is a second or third day of the mediation scheduled, some mediators may try to push the caucus sessions well into the late hours of the night even if little or no progress is being made.

This extra effort can be counterproductive. The attorneys and their clients will grow hungry, tired, and weary. Tempers will become very short, and frustrations will grow. The parties can end the evening no closer towards reaching settlement, and they will not look forward to the next day of the mediation. In fact, the parties may grow so jaundiced that they will give up on the process altogether, and ditch the notion of a second or third day of negotiation.

If there is little progress being achieved in the settlement negotiations, instruct the mediator that your client wishes to call it a night. Indicate to the mediator that you believe it will be more productive for the parties to have a good meal, a good discussion with their respective counsel, and a good night’s rest before an additional day of mediation. There’s always time to negotiate the next day when all the parties, and especially your client, can come back with clear heads. The mediator will usually accept this request.

Experienced mediators recognize the importance of giving the parties an opportunity to step back from the bargaining and view their positions more globally (which usually means “can we really afford to blow this opportunity to settle the case.”) It is for this reason that the mediator, rather than allowing the parties to become frustrated and entrenched in their positions, is likely to welcome such a respite. It will also give the mediator an opportunity to reassess the situation, review his or her notes and try to fashion new approaches to achieve movement toward a resolution.

The mediator, however, is not likely to simply bid the parties a “good night” and send them on their way. Instead, the mediator is likely to give them issues to consider, including at what point does a negotiated solution cease to be better than returning to litigation. In this regard, the mediator may ask the parties to reflect upon the future course of the litigation, its costs and duration and the input on that equation if the other side chooses to appeal any favorable verdict that might be achieved. Here, the mediator is likely to indicate that he would like to explore these issues in depth in the next session to ensure that the parties give them ample consideration.

I was recently at a mediation in which the mediator insisted working into the evening. It was Friday night, no less. Not only that, he declared in the beginning of the process that it was his wife’s birthday.

Now, he then proceeded to make the biggest mistake a mediator could make. Knowing that the parties are tired, frustrated and hungry at this point, a mediator really has to show great care and understanding when trying to get movement in the parties’ positions.

Instead, this mediator, tired and frustrated himself, just came in and echoed old arguments that did not work and was dismissed by our side six hours earlier. Instead of getting the parties closer, his failed attempt caused further entrenchment in the positions.

He should have sent us home and taken his wife out to dinner!!

ü Make sure the mediator follows his or her own standards or guidelines.

Every attorney who does mediations on a regular basis can tell of an experience when they had felt that the mediator was not acting impartially or was overly coercive. If you feel this is the case, you have every right to challenge the mediator. Mediators generally follow the standards that have been set forth jointly by the American Arbitration Association and the Society for Professionals in Dispute Resolution. Two guidelines that are common to all such standards are that:

1.     A mediator shall recognize that mediation is based on the principle of self determination by the parties; and

2.     A mediator shall conduct the mediation in an impartial matter. 

Especially when a mediator is just starting out, it becomes very tempting for that mediator to use whatever tactics he or she can muster in order to build up a won-loss record. If a mediator can claim that he or she has a 90% or 100% success rate at getting parties to settle, it arguably can be used as a good marketing tool to get more business. However, a mediator should not coerce one side to take less or pay more than the mediator honestly believes should be paid solely in order to give their won-loss record a boost.

The truth of the matter is that attorneys will like mediators who bang heads when necessary. However, you will want any banging of your own client’s head kept to a minimum.

ü Remember that it’s okay to get a bit excited.

To the unfortunate dismay of many judges, the private mediators getting hired to settle a lot of their cases get paid much more than those judges that have their offices filled with pleadings and briefs in those very same cases.

The fact of the matter is that the mediator’s job is more difficult. The judge is armed with the force of law and has the power to compel the parties to act as he or she orders. The mediator has no such power and must use the forces of reason and persuasion to cause the parties to act. It’s like trying to land a 200 pound fish using a 20 pound line. Because of this, where you may show enormous restraint and respect in a judge’s chambers, those rules don’t necessarily apply when you’re in the presence of a mediator.

Although most mediations can and should be cordial affairs, at times, tempers and emotions can flare up. And sometimes, it is to your benefit that you don’t try to hold it in. Although an attorney should not walk in to mediation, and immediately begin jumping up and down, some mediators may take calmness throughout the process as softness in your position. It is in this situation that you may choose to accentuate the way that you see the case. Tell the mediator if, in fact, you are not satisfied with the process and that you believe a change in the mediator’s strategy may be required. Your anger will have a much greater impact if you have previously displayed calmness in the face of unreasonable action by the opposing side.

“You can’t make chicken soup out of chicken feathers!!”

Anonymous

Sometimes, I think the best way to show that I am getting to that “line in the sand” number is to start showing that I am getting a bit frustrated and angry. If I come across as very calm and relaxed when I am getting close to my number, that can be construed by the mediator that I still have a lot more room. The last thing I want the mediator to have is an incorrect impression as to where I may want to end up.

Conclusion:

Mediation is a pro-active process, and you should look at the process like a painter would look at a blank canvas. If you are the painter, you decide the story you want to tell in the painting, what kind of paint to use, what colors to select. The above steps is laid out to help you be the painter. Because if you do not come prepared to fill in the empty canvas, there will be others in the process that will do it for you, and you may not be as happy with the final result. Remember. You can control your own destiny

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