Here are some yearend takeaways re mediation advocacy:
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 […]
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, […]
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 […]
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 […]
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 […]
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 […]
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 Successful Mediation Is Not Limited to One Where the Parties Reach Complete Agreement at the Mediation Conference.
We tend to think of a mediation as successful where the parties reach a complete agreement at the mediation conference and as unsuccessful where they fail to do so. But a mediation also offers the opportunity to achieve success short of a complete agreement. The parties may resolve some though less than all their issues. […]