Civil lawsuits are most often resolved by a mediated settlement agreement, which could have an infinite variety of settlement numbers and terms. What result a party achieves, after months or even years of litigation, is in large part a function of what happens on the day of mediation. Mediation is therefore the most important day of the case. Ironically, most lawyers go through law school and their legal practice with no formal education or training on how to represent a party at mediation. They just watch others, whether good or bad, and learn the ropes over time. However, mediation is far too important to learn by trial and error, because it is the day where all the fruits of a lawyer’s labor are put to the test. Therefore, this article is meant to provide lawyers of all experience levels with some practical pointers on how to succeed at mediation and thereby better serve their clients and improve judicial economy as a whole.
Tip #1: Expect a Competitive Negotiation. Mediation is not a cooperative negotiation process. There are books about cooperative negotiation where both sides show all their cards and reach a “win-win” result. For example, if you had one orange and two people wanted it, rather than slicing it in half, both parties could come to the table and explain why they wanted the orange. It might be that one party intended to squeeze the juice and the other person wanted to use the rind for a cake. By sharing this information, the parties realize they don’t have to cut the orange in half, and can both get everything they wanted. This requires trust and honesty, and quite a bit of luck. By contrast, civil litigation is often about money, and therefore it is a zero sum game. That is to say, $100 out of your pocket will become $100 in my pocket, and the sum is zero. If one lawyer attempts a cooperative approach in mediation, he or she should not expect the other side to do the same. A competitive negotiator will clean the clock of a cooperative one. For example, if a cooperative negotiator explains that his client really needs only $1,500 per month to cover the remainder of the lease payments, the competitive negotiator might never offer a lump sum payment. For purposes of mediation, expect the negotiations to be competitive, not cooperative.
Tip #2: Don’t Drop Anchors. Negotiation begins long before mediation. An anchor is a number mentioned at some time in the lawsuit that the other side will no doubt remember many months later. Any number will sound like an offer, even if it is not. Attorneys may try to use qualifying language, like “my client might go to $100,000” or “I doubt he would go to $100,000,” but qualifiers fall on deaf ears. All the other lawyer hears is a possible settlement number, or an “anchor,” of $100,000, which has a powerful effect on where the case ultimately settles. In one study, lawyers were asked to value a rare jewel for auction, and were given information about its condition, rarity, age, maker, and comparable sales. They were handed a detailed questionnaire, which asked at the end, “Do you believe the value at auction exceeds $2,500?” There was a blank line for the attorney to give his or her best estimate of value, and the average number given was $1,800. Other lawyers were given the very same questionnaire but instead, at the end, it asked whether the value would exceed $5,000 at auction. The average estimate given on these forms was $4,200. The anchor, therefore, made huge impact on the lawyer’s valuation. If opposing counsel asks what your client might take, you may not want to give a number. For the plaintiff, you might indicate, “he is looking to recover the whole amount” or, for the defense, state “we are not looking to pay anything at all.” Of course, if you serve a proposal for settlement under Fla. R. Civ. P. 1.442, you will have to weigh the potential fee-shifting benefit of offering a settlement number with the drawback of dropping an anchor. Since the vast majority of cases are resolved in settlement rather than by court adjudication, which where fee-shifting might occur, avoiding the anchor may be the weightier consideration.
Tip #2: Don’t Drop Anchors. Negotiation begins long before mediation. An anchor is a number mentioned at some time in the lawsuit that the other side will no doubt remember many months later. Any number will sound like an offer, even if it is not. Attorneys may try to use qualifying language, like “my client might go to $100,000” or “I doubt he would go to $100,000,” but qualifiers fall on deaf ears. All the other lawyer hears is a possible settlement number, or an “anchor,” of $100,000, which has a powerful effect on where the case ultimately settles. In one study, lawyers were asked to value a rare jewel for auction, and were given information about its condition, rarity, age, maker, and comparable sales. They were handed a detailed questionnaire, which asked at the end, “Do you believe the value at auction exceeds $2,500?” There was a blank line for the attorney to give his or her best estimate of value, and the average number given was $1,800. Other lawyers were given the very same questionnaire but instead, at the end, it asked whether the value would exceed $5,000 at auction. The average estimate given on these forms was $4,200. The anchor, therefore, made huge impact on the lawyer’s valuation. If opposing counsel asks what your client might take, you may not want to give a number. For the plaintiff, you might indicate, “he is looking to recover the whole amount” or, for the defense, state “we are not looking to pay anything at all.” Of course, if you serve a proposal for settlement under Fla. R. Civ. P. 1.442, you will have to weigh the potential fee-shifting benefit of offering a settlement number with the drawback of dropping an anchor. Since the vast majority of cases are resolved in settlement rather than by court adjudication, which where fee-shifting might occur, avoiding the anchor may be the weightier consideration.
Read More: http://www.deanmead.com/deanmead-newsletter/15-tips-for-a-successful-mediation
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