GETTING TO YES (and) GETTING THE BEST RESULT

INTRODUCTION

Mediation is an effective way  to resolve disputes. "Getting to yes", however, is seldom easy and attorneys and their clients can make the mediation process more difficult than it is. Thus, as an advocate, give yourself and your client the best opportunity to resolve the dispute and get the best result.

RECOMMENDATIONS

Mediate sooner rather than later. Avoid mediating shortly before trial. If possible, mediate even before the complaint is filed.

Go to the mediation in food faith. If you doubt the opposing party’s good faith and/or their understanding of the mediation process, communicate the following message to opposing counsel: We are coming to the mediation in good faith to resolve the dispute, and we expect that your client is coming to the mediation for the same reason.

If after discussing this subject with opposing counsel, you continue to doubt the other party’s good faith or their understanding of the mediation process, talk to the mediator and request that the mediator talk to the opposing counsel. The mediator can send a message that you are serious and that your opponent should not abuse the process or take this mediation lightly. The opposing party may also gain insight into the process.

Set aside enough time for the mediation. If in doubt, schedule the mediation for a full day. If the matter is not resolved by 5:00 p.m., assuming momentum, continue the mediation. Be patient. Parties need time to vent and deliberate. The mediation will be successful if sufficient time is set aside to develop the facts, the claims, the damages and the defenses and to negotiate.

Avoid scheduling a full-day mediation on a Friday. Invariably, some participants will want to leave by the middle of the afternoon or their minds will drift to other matters.

Recommend that the decision makers, insurance adjusters and other significant individuals, e. g., the spouse of a party, a partner or a significant other, attend the mediation and that they, the mediator and the lawyers be available to work after 5:00 p. m. Again, even if the top representative from the opposing party is not present, the fact that you made a point of communicating this request will leave the impression that you are serious and that the opposing party cannot take this mediation lightly.

Investigate your client and investigate your client’s claims. Corroborate his (her) perception of what happened. Obtain ammunition to support your client’s case. Avoid going to the mediation relying solely on what your client tells you.

Talk to opposing counsel! Communicate significant information about the case to him/her before the mediation. Exchange mediation briefs. Do not "hide the ball."

Maintain a professional, businesslike relationship with the opposing counsel and the other party.

Go to the mediation with an open mind. Be open to the possibility that your understanding of the facts may be incomplete and that your expectations concerning settlement may be unrealistic.

At the initial joint or open session with all present, take advantage of the opportunity to present significant information about your case to the other party, their decision maker, the insurance adjustor and opposing counsel. Be respectful, professional and businesslike in your presentation. Show compassion and pour your heart out for your client’s case, but do not make personal attacks against the opposition.

Allow your client the opportunity to express his or her views at the initial open session. It is important for clients to play a role. It is their day in court, and they may need to vent. But work with your client on his/her presentation. Know what they will say before the mediation, and let them practice their statement with you until you and your client are satisfied that it is as good as it can be.

After the initial session, meet with the mediator in a private caucus. Explore settlement options. Consider the mediator’s neutral evaluation of the dispute.

Negotiation guidelines:

Consider both economic and non-economic matters that may be important to the parties.

Compare the negotiation process to the sale of unique property. Plaintiffs are selling a lawsuit. Defendants are buying a lawsuit.

Determining the value of the case may be difficult.  As a general rule, however, economic loss is the most important factor in determining value. There are signifcant exceptions to this general rule of course.  There are cases where emotional distress and punitive damages are very much in play. 

If you are uncertain about the value of your case and/or your client has unrealistic expectations, consult an expert or trusted colleague(s). Obtain a neutral evaluation. Share this information with your client.

If your client has unrealistic expectations, talk to the mediator about the problem. Mediation may be the appropriate forum to address unrealistic expectations. Consider also that your client may be depressed, a common condition among litigants in some areas, e.g., employment law and divorce cases. If so, refer your client to an appropriate medical doctor or psychologist.

Be realistic when you state the asking price. "Do not hang the meat so high that the dog won’t jump. Hang the meat low enough so the dog can get it." If your asking price is unrealistic, you may delay the time that meaningful negotiation can occur. Worse, the opposing party may not negotiate. The opposing party and their lawyer may also declare that you and your client are acting in bad faith.

Insure that your client understands that negotiation is a deliberative process, that the first offer or counter offer does not end the process and that he (she) must be patient.  The more time the parties invest into the process, the more likely they will come together with a resolution.

Do not leave the mediation prematurely.  Do not leave the mediation before you learn the final position of the other party.

If the matter is resolved, put the settlement in writing. Do not leave until the agreement is signed.

If the matter is not resolved and the parties depart, insure that the mediator continues to work to resolve the case unless you take action to stop the process from continuing. Use a mediator who is persistent and determined to bring the parties to "yes".

CONCLUSION

Do not make the mediation process more difficult than it is. Give yourself the best opportunity to "get to yes" and "get the best result".

But recognize that mediation is hard work. Each side feels strongly about the righteousness of their position. The matter will be resolved, however, if each side comes to the mediation in good faith with a sincere desire to resolve the dispute. If one party comes to the mediation with entirely unrealistic expectations, however, the mediation may not be successful.

Good Luck!