Bait the Hook to Suit the Fish.
Not all mediation settlements are as simple as defendant writes a check and the parties exchange releases. Even terms of payment – timing, security, default remedies – can be contentious. A mediating party focuses on what it needs to receive but must also consider what it is willing to give to get it. Your mediator […]
Don’t open with your best offer.
Don’t open with your best offer. Even if it really is your best offer, it is all but impossible to convince an adverse party that it is. One and done almost never happens and opening with your best offer leaves you no room to negotiate. Once your offer is rejected, attempting to go backwards, i.e., […]
Some Yearend Takeaways
Here are some yearend takeaways re mediation advocacy:
Take Advantage of the Procedural Flexibility Inherent in Mediation.
Unlike trial courts, which operate under elaborate procedural rules, mediation has no formal procedural requirements – just a few customary procedures, e.g., joint opening sessions, opening statements, separation of the parties for caucus bargaining. Mediators are free to proceed as the situation may require or as the parties may request. If the parties request, for […]
Limit Your Opening Anchor to a Number You Can Justify.
Parties usually begin positional money bargaining from extreme positions known as anchors to show confidence in their cases and to manipulate the midpoint of the gap between them. So long as your anchor does not exceed your best day in Court, the Mediator can explain to the opposing party what it is based on. Often, […]
Avoid a Misunderstanding When Proposing a Link or Bracket Move.
A timely link or bracket move, e.g., “We’ll increase our offer to $X, if you reduce your demand to $Y,” is a potent negotiating tool that can streamline the bargaining process, flush out the parties’ real intentions, and build momentum towards settlement. Just recognize that when you propose a bracket, the other side will read […]
There Is No Good Reason for a Party to Mediate Without a Client Representative Having Adequate Settlement Authority.
In traditional sit-down mediations a party can sometimes gain an unfair negotiating advantage by having its representative participate by phone, or in person, but lacking adequate settlement authority. But now, in the age of video, there is no good reason for a party’s failing to present on screen a representative clothed with sufficient settlement authority. So have […]
Be Sure You Have Enough Information to Reach a Mediated Settlement.
In theory, early mediation is the quickest, most cost-efficient way to resolve a dispute. The problem, however, is that until there has been sufficient discovery, all the lawyers know about the material facts is what their own clients have told them, leading to vastly differing valuations of claims and defenses. It is only when counsel […]
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 […]