Preparation: The Key to Settling Your Case at Mediation
Edmund J. Sikorski, Jr. J.D.
“Boy Scout motto: BE PREPARED! Most problems come from lack of preparation”
F. Shields McManus, Circuit Judge, View From The Bench, Oct. 13, 2011 (CLE #18742)
This article offers a list of key elements that, if addressed in advance of mediation, will enhance the likelihood of a successful outcome.
Select a Mediator with Subject Matter Knowledge
Depending on the nature of the case, for a mediator to come up with the right questions to facilitate resolution may well require that the mediator have significant experience in a particular field. Mediators with knowledge and experience in that area not only can provide those questions, but do so with the respect of the parties based on that experience and expertise. A key hallmark of an effective mediator is the ability to hear what is not being said in order to cut through the real motivating issues.
IDENTIFY and Require the Presence of the DECISION MAKER
In addition to the fact that Rule 1.720 now requires the presence of a party or party representative with full authority to settle without further consultation, if the real decision maker is not a participant, the entire process becomes meaningless and will be an exercise in futility and a waste of time and money.
PROVIDE ADEQUATE INFORMATION EXCHANGE
Adequate information means sufficient information to make an informed settlement decision. If one withholds information, one must answer the question whether the withheld information adds to or detracts from the legitimacy of the claim or defense during the mediation process. The mediation process is after all an opportunity to convince the other side of the legitimacy of the claim and value of the case.
PREPARE AN EFFECTIVE MEDIATION BRIEF
Mediation briefs can be a very effective tool in the dispute resolution process if the focus is aimed at two (2) areas:
First, focus on persuading the other side. This is another opportunity to affect the other side’s thinking. Present facts and arguments that make the opposition reluctant to proceed to trial and why resolution on your terms is in their interest. Video and graphics are indispensable.
Second, focus on information that directly addresses the considerations most applicable to settlement, as opposed to what a judge might need to understand prior to trial. What obstacles prevented prior settlement? If there is a factual dispute, identify that. If there is a legal dispute, identify that. If the participants simply have different views about the range of possible outcomes at trial, the mediator can help the parties bridge that gap by the use of “decision tree” analysis. If the problem is really an ability to pay, both sides need to address THAT problem.
MAKE AN OBJECTIVE CASE VALUATION AND RISK ANALYSIS
First, make a risk assessment protocol. This is an explicit list of the assumptions and calculations that underlie the value decision.
Second, make a comparison to similar cases. This is the jury verdict research. See: www.hurt911.org for resource materials available.
Third, apply decision tree risk analysis.This process STARTS with a damage analysis and then discounts BACKWARDS for liability, costs, present value, and trial uncertainties such as how the judge applies the law, how the facts come in, how well the experts testify, how well the other side’s lawyer tries the case, how the jury will react, etc.
DEVELOP A NEGOTIATING PLAN
Negotiation communications that start with a number higher (Plaintiff) or lower (Defendant) than the parties own case evaluations are inviting emotional reactive responses that shut down the process and lead to impasse for no good reason. All that will be accomplished is an argument between two sides that have traded an organized cognitive process for an emotional war of attrition.
The solution is to start with a plan beginning with “your best day in court” and systematically moving through your negotiating range to your walk away number.
Make a plan and stick to it. Stay in control of an otherwise reactive process calculated to be self -defeating. As in any military or sporting contest, victory is often achieved because of the self -inflicted wounds by the other side on itself.