What Happens At Mediation
(PART 2 OF A 3-PART SERIES)
As an experienced mediator, I have found several things attorneys can do to help facilitate settlement during the mediation process. Here are a few helpful tips regarding:
- The Opening Session
- The Plaintiff’s Room
- The Defendant’s Room
1. The Opening Session: Don’t pick anybody off 1st base.
The growing trend is for all parties to waive an opening session and immediately begin settlement negotiations. As a matter of fact, waiving an opening session has become so popular that mediators typically assume no party wants an opening session unless one side demands the same. If either party wants to have an opening session, it is a good practice to let the mediator and opposing counsel know a few days in advance so that the other side can adequately prepare. No one likes to get picked off first base, and if one side shows up at mediation demanding an opening session and the other side is not prepared for the same, the chances of settlement are greatly reduced.
2. The Plaintiff’s Room: Come to Jesus early and often.
While the general rule of thumb for an opening demand is typically “the sky’s the limit” and “we can start as high as we want,” remember, it doesn’t matter where you start, it matters where you finish. If you are going to start on the high side, it is important to also stay focused on the range of what is the true case value. This helps the parties and the mediator manage potential unrealistic expectations. For example, if the plaintiff’s room believes the case is worth $20,000 to $30,000, but are going to start with an opening demand of $100,000, it is important to remember and focus on the the value of this case being not $100,000, $75,000, or $50,000, but $20,000 - $30,000.It is also helpful to remember that starting with an unrealistically high demand, will likely require reducing that demand significantly as the other side moves up in smaller increments. Managing expectations is key to a successful mediation session. Simply stated, regular come‑to‑Jesus meetings and discussions regarding the case’s true value, and not the opening or current demand, help keep the focus on an ultimate goal and help lead to a reasonable settlement.
3. The Defendant’s Room: Help us manage expectations.
Assuming the plaintiff makes an unrealistic opening demand and perhaps equally unrealistic demands thereafter, the defendant can, in turn, respond with unreasonably low offers. We frequently hear, “If they are going to start that high, then we are going to start this low. ”The mediator then spends more time than is necessary managing tempers of the respective attorneys and parties. When an unreasonably high demand is initially made (and perhaps demands thereafter are still considered unreasonably high), the best practice is simply to ignore what the plaintiff’s room is doing and make offers based upon the true case value. While this may seem like a hard pill to swallow, it more often than not helps a mediator manage a plaintiff’s expectations and results in a successful mediation session.
Speaking of managing expectations, without disclosing to the mediator what a defendant’s top dollar will be in terms of a final offer, it is helpful for a defendant to disclose to the mediator early on in a mediation session the general range of an anticipated settlement. Having a basic understanding of where a mediator will need to guide a plaintiff’s expectations is critical to setting the tone early and leading discussions in the plaintiff’s room in order to facilitate a settlement.