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Making Money Talk in Mediation

By Ed Sikorski

Much of the literature in the field of mediation approaches the subject on a theory of problem solving. But I have observed that that approach to civil trial court mediation where money is the only thing that will change hands has limited application.

In Making Money Talk (ABA Publishing, 2007), author J. Anderson Little advances a model to help civil trial court mediators deal with the realities of negotiations about money . The author advances three ways to make traditional bargaining more productive for the parties:

1) Facilitate the flow of information
2) Facilitate case or risk analysis
3) Facilitate movement

I am sometimes amazed during the actual mediation that the very information that would give objective legitimacy to a claimant’s case has not been furnished at that point or is not then available. Without supporting information either delivered or presented how are the parties to settle a dispute at a time there is incomplete information? This observation applies equally to both sides of the aisle. Objective criteria to support or defend a claim are essential. An exchange of money for a claim is only equivalent if all the objective criteria is present and known. 

In the vast majority of cases both sides are well prepared and mediators need to approach the subject of case analysis in a manner that will not offend the litigants or their attorneys. However, experienced attorneys know that all law suits are not made in heaven and that most of us cannot think of everything that could possibly go wrong with a case or interpretations of circumstances that varies from a particular view of the case. This is where the mediator can be of substantial assistance rather than becoming simply a messenger of numbers.

The success of the mediation (and the mediator) is only as good as the parties’ detailed documentation of their respective positions will allow. Litigants “opinions” about likely outcome of a case at trial absent objective criteria and legitimacy of all of the elements of a case are in most cases complete guesswork.

The success of the mediation is fundamentally dependent on a case and risk analysis that is thorough and grounded in reality of the inherent risks of the adversary system. It is the framework with which settlement is made possible.

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