Lawyers Representing Clients at Mediations Should Be Mindful of Their Ethical Obligations

Although mediations are private, informal proceedings, observing the Rules of Professional Conduct governing lawyers is no less obligatory than at a hearing or trial. Lawyers representing clients at mediations should be mindful of duties imposed by applicable rules, especially those in Chapter 4, which include: to avoid impermissible conflicts of interest; to provide competent representation […]

Consideration for a Settlement Can Include More Than Just Money.

Most successful mediations result in parties agreeing that one will pay the other an agreed sum. When the parties cannot agree on the amount, however, they can supplement the monies available with nonmonetary consideration, for example, letting the defendant pay in installments, or agree to a covenant, such as a noncompete, or provide goods or […]

When Formulating an Offer Think About How It Will Be Received.

Negotiating parties naturally focus on their own needs and pay far less attention to the needs of their adversaries. This bias toward its own needs colors the offers that each party makes, but until the needs of all parties are adequately addressed there can be no consensual resolution. So when formulating a settlement offer, consider […]

A Defendant That Needs Extended Payment Terms Should Make a Timely Request.

A defendant will often find itself unable to pay in a lump sum the amount needed to settle. Happily, to obtain a sufficient settlement a plaintiff will often agree to accept payments spread over a period of months or even years. If your defendant client will require payment terms be sure to ask for them […]

NADN press release

Francis L. Carter, P.A. is pleased to announce that Francis L. Carter has been inducted into the National Academy of Distinguished Neutrals (NADN). Francis Carter is a mediator and settlement counselor in commercial civil and bankruptcy cases who has mediated more than one thousand cases. He is recognized by Best Lawyers in America in four […]

Help the Mediator Convince the Other Side.

In many mediations, each party forcefully tells the mediator: it’s clear we have the better case, so go convince the other side our case trumps theirs. But the mediator is new to the case, has not heard the witnesses testify, and is not well versed in the proof of either side’s case. Counsels’ mere assertions […]

How Do You Make a Credible Final Offer?

Final offers usually meet with skepticism as to whether they are truly final. So how do you make your final offer come across as credible to the mediator and to opposing parties? First, taper your concessions, especially in the later phase of negotiations. This means each move you make should be smaller than your previous […]

Is Their Final Offer Really Final?

Often late in the day a party will give the mediator an offer, concluding with the words, “And tell them this is our final offer!” But is it? And how should you respond? If it is their first “final offer,” it is almost always best to test the finality with a counteroffer. So long as you keep […]