Anyone who works in the dispute resolution field knows that ADR has always stood for "alternative dispute resolution." It is also common knowlege that the usual alternatives are considered to be arbitration, mediation, private-judging, and neutral evaluation. So "ADR" is commonly used to refer to any or all of those forms of dispute resolution. But, has this usage become misleading?
ADR is thought of as the alternative to going to court. Yet, a good case can be made that one or more of these so-called "alternatives," especially mediation, have become the commonly accepted way of resolving legal disputes and that going to court is now the true alternative.
A good deal has been written about the "vanishing trial." Lawyers have become used to the fact that the great majority of cases are settled and that very few go to trial. Soon we will be hearing about the "vanishing arbitration" as parties become more aware that arbitration can have many, if not all, of the downsides of going to court, including high costs, waste of time and energy, stress, and uncertain results. In short, high costs and high anxiety.
Judges and arbitrators can deal with some of the drawbacks of both litigation and arbitration by effective management of their cases. They can manage the pre-trial or pre-hearing process so that it does not become unduly burdened with expensive and unnecessary depositions and motions. But they will never be able to remove the major downside of both processes, which is the inability to predict what judges, juries, and arbitrators will decide.
Inevitably, negotiation and mediation are becoming the most commonly accepted vehicles for the resolution of lawsuits in the United States and perhaps around the world. Welcome to the new world of dispute resolution and to the new alternatives!
Friday, December 4, 2009
Saturday, November 7, 2009
CUSTOMIZING THE MEDIATION PROCESS
Back on September 1, I wrote about the “Task Force on Improving Mediation Quality.” The Task Force, which was formed by the American Bar Association Section of Dispute Resolution in 2006, was charged with conducting an investigation to identify the factors that define high quality mediation practice. You can find their Report on the Section's website.
One of the factors that they cited was case-by-case customization of the mediation process, which is a concept that may be surprising to many people. Most mediators and attorneys have become accustomed to using a “one size fits all” approach rather than making adjustments from case to case. The fact is, however, that times are changing.
Counsel should always talk with the mediator ahead of time about the process. The mediator should make an initial assessment of the dispute, suggest the appropriate methods to be used, and seek approval of those methods from counsel. Each attorney will have his or her own negotiating strategy, but all counsel should be on the same page with the mediator regarding the process.
There are a few simple steps to be followed when customizing.
Identifying the Method. Depending upon the nature of the conflict the mediation will involve one or more of three different methods of mediating: competitive, cooperative, or transformative.
If the dispute is just about money, such as failure to pay a bill, the mediator’s task will be to facilitate a competitive negotiation. The result will be a distributive bargain (the “zero sum exchange”), with no new value created. Bear in mind, however, that disputes which appear on the surface to be about money alone may really be about something else as well, and that they may require more than a purely competitive approach.
Disputes that arise from a pre-existing relationship are good examples of those that are about more than money. Thus, employment disputes often require that the mediator suggest either an apology or at least that the employee be given an opportunity to voice his concerns directly to the employer. Other considerations might be ways to help the employee make a transition to a new job. In such cases, the nature of the mediation will be both competitive and cooperative. The competitive aspect will involve the payment of any money that is to change hands, while the cooperative aspect will entail creating additional value through the apology, by giving the claimant a substitute for a day in court, or by other means.
Business disputes, such as disagreements among partners or between companies that have an ongoing relationship, are often classic examples of cases that call for the cooperative method. The case can frequently be settled by restructuring the relationship or by striking a deal that meets the business needs of both sides.
Cases that involve a family, neighborhood or other personal relationship that has broken down are examples of situations that may call for the transformative approach. Cases such as these can be among the most challenging to settle because the destruction of the relationship has become the obstacle to resolving the conflict. In these disputes the mediator first works to help the parties restore their trust in one another and then to create an agreement that ends the conflict and allows them to get on with their lives.
Having agreed upon one or more methods, the mediator and counsel will need to customize the process so that it will be consistent with their strategy. In the purely competitive situation, the typical model which uses a joint session followed by separate caucuses may work quite well. If the method is either wholly or partly cooperative, however, and especially if it is transformative, a more creative approach will be required.
Customizing the Caucus Model. Customization will generally involve working with the caucus model of mediation so that it fits the needs of the case. There is no “right way” to use the caucus model, except for the way that works in the case at hand.
In business cases that call for a cooperative approach, the mediator will be presented with the question of how best to facilitate the negotiation. Who will do most of the talking, the principals or the lawyers? What setting will be the most comfortable? If the principals alone become the real players, will the mediator play an active role or not?
When the transformative approach is indicated, it is important to allow the principals to interact. They will need to talk in order to rebuild their relationship, and if the mediator insists on keeping them apart for the whole day, the mediation may result in nothing more than frustration.
Departures from the Caucus Model. In some situations, customization may actually involve a departure from the caucus model so that the mediation is conducted entirely, or at least primarily, in a plenary session. All participants remain in the same room for as long as possible and mediate under agreed ground rules. Anyone may call for a break at any time, whether it be to confer with counsel or for some other reason.
Business cases and family disputes are good examples of these situations. Cases where the parties are not represented by counsel also seem to lend themselves to this approach because the parties do not have an expectation of being kept in separate rooms.
The Need for Flexibility. Flexibility allows for changes in format, style or technique in the event that developments occur during the mediation that were not expected. If, for example, one of the parties decides during the mediation to abandon a competitive attitude in favor of a cooperative approach, the process will probably need to be modified in order to allow for direct dialogue.
The mediator may need to improvise in response to the behavior of the parties or the information that they present. It is impossible to anticipate everything that the principals may say or do, and the mediator must always be ready to make adjustments.
One of the factors that they cited was case-by-case customization of the mediation process, which is a concept that may be surprising to many people. Most mediators and attorneys have become accustomed to using a “one size fits all” approach rather than making adjustments from case to case. The fact is, however, that times are changing.
Counsel should always talk with the mediator ahead of time about the process. The mediator should make an initial assessment of the dispute, suggest the appropriate methods to be used, and seek approval of those methods from counsel. Each attorney will have his or her own negotiating strategy, but all counsel should be on the same page with the mediator regarding the process.
There are a few simple steps to be followed when customizing.
Identifying the Method. Depending upon the nature of the conflict the mediation will involve one or more of three different methods of mediating: competitive, cooperative, or transformative.
If the dispute is just about money, such as failure to pay a bill, the mediator’s task will be to facilitate a competitive negotiation. The result will be a distributive bargain (the “zero sum exchange”), with no new value created. Bear in mind, however, that disputes which appear on the surface to be about money alone may really be about something else as well, and that they may require more than a purely competitive approach.
Disputes that arise from a pre-existing relationship are good examples of those that are about more than money. Thus, employment disputes often require that the mediator suggest either an apology or at least that the employee be given an opportunity to voice his concerns directly to the employer. Other considerations might be ways to help the employee make a transition to a new job. In such cases, the nature of the mediation will be both competitive and cooperative. The competitive aspect will involve the payment of any money that is to change hands, while the cooperative aspect will entail creating additional value through the apology, by giving the claimant a substitute for a day in court, or by other means.
Business disputes, such as disagreements among partners or between companies that have an ongoing relationship, are often classic examples of cases that call for the cooperative method. The case can frequently be settled by restructuring the relationship or by striking a deal that meets the business needs of both sides.
Cases that involve a family, neighborhood or other personal relationship that has broken down are examples of situations that may call for the transformative approach. Cases such as these can be among the most challenging to settle because the destruction of the relationship has become the obstacle to resolving the conflict. In these disputes the mediator first works to help the parties restore their trust in one another and then to create an agreement that ends the conflict and allows them to get on with their lives.
Having agreed upon one or more methods, the mediator and counsel will need to customize the process so that it will be consistent with their strategy. In the purely competitive situation, the typical model which uses a joint session followed by separate caucuses may work quite well. If the method is either wholly or partly cooperative, however, and especially if it is transformative, a more creative approach will be required.
Customizing the Caucus Model. Customization will generally involve working with the caucus model of mediation so that it fits the needs of the case. There is no “right way” to use the caucus model, except for the way that works in the case at hand.
In business cases that call for a cooperative approach, the mediator will be presented with the question of how best to facilitate the negotiation. Who will do most of the talking, the principals or the lawyers? What setting will be the most comfortable? If the principals alone become the real players, will the mediator play an active role or not?
When the transformative approach is indicated, it is important to allow the principals to interact. They will need to talk in order to rebuild their relationship, and if the mediator insists on keeping them apart for the whole day, the mediation may result in nothing more than frustration.
Departures from the Caucus Model. In some situations, customization may actually involve a departure from the caucus model so that the mediation is conducted entirely, or at least primarily, in a plenary session. All participants remain in the same room for as long as possible and mediate under agreed ground rules. Anyone may call for a break at any time, whether it be to confer with counsel or for some other reason.
Business cases and family disputes are good examples of these situations. Cases where the parties are not represented by counsel also seem to lend themselves to this approach because the parties do not have an expectation of being kept in separate rooms.
The Need for Flexibility. Flexibility allows for changes in format, style or technique in the event that developments occur during the mediation that were not expected. If, for example, one of the parties decides during the mediation to abandon a competitive attitude in favor of a cooperative approach, the process will probably need to be modified in order to allow for direct dialogue.
The mediator may need to improvise in response to the behavior of the parties or the information that they present. It is impossible to anticipate everything that the principals may say or do, and the mediator must always be ready to make adjustments.
Thursday, October 29, 2009
THE UNIMPORTANCE OF SUBJECT MATTER EXPERTISE
I have just read an excellent post from F. Peter Phillip's Business Conflict Blog. I am going to quote from it at length because there is no other way to do it justice.
Peter has been reporting from the International Business Association Conference in Madrid and this post concerns a panel of corporate users who were asked whether subject-matter competence was an important factor in selection of a mediator. This question is one of those perennial topics that will always be debated. It is akin to the facilitative/evaluative dichotomy. Maybe Peter's post will settle it once and for all.
So who better to ask than corporate users? If subject matter competence is important, then surely the corporate users will tell us.
Peter reports that a survey was taken and that “The respondents came from 20 different countries....The survey concluded that, while utter ignorance seldom added value, [who can argue with that?] users preferred a mediator who could quickly grasp the facts of a matter and proceed to solicit authoritative and informed solutions."
A legal director for an engineering company “…does not seek out mediators with engineering or IT backgrounds. Rather, he looks for a bundle of mediation-related skill sets and past experience in complex multiparty disputes....But by far the most salient attribute for a successful mediation, he said, was the trust that the parties placed in the mediator."
[One lawyer was] “senior counsel to the largest food company in the world, and the disputes he runs into involve distributors, retailers, suppliers and consumers in every part of the globe. His ideal mediator combines logic and intuition; a concern for detail; and the knack of an empathic listener. He noted that commercial disputes even financial ones are seldom dry, but instead involve personalities, risk of loss of face, and other human attributes just as much as more personal claims do. The question of subject-matter expertise was of little importance to [him], compared to these essential qualities in a mediator who must be expert in a process that, at heart, is aimed at cost effectiveness. A lack of industry expertise has never caused a failure of the mediation process."
“On the other hand, [another lawyer] deals largely with cargo airlines and shipowners …. The culture of maritime practice, in his opinion, is an essential attribute for the understanding and resolution of these disputes, and he has used industry experts for years. It is important to him that he employ good negotiators with high mediation skills, but who know the practices and the expectations of the maritime industry intimately."
The head of technology for a UK company strongly prefers “generalist mediators, who can humanize engineering problems and conduct sessions in a manner to solicit human solutions to them…."
“The final speaker [who was] General Counsel France for General Electric Company [which] puts mediation clauses into as many contracts as it can” said that “what I am looking for is a decent human being.” What a concept!
So there we have it: the ideal mediator of business disputes. Someone who is a decent human being, has a bundle of mediation-related skill sets and who can even humanize engineering problems. An empathetic listener, whom the parties trust, who can call upon logic and intuition as well as a concern for detail. An expert in a process that is aimed at cost effectiveness. And, at least in some cases, a person who understands the expectations and practices of the industry. I guess that about sums it up. Wouldn’t you agree?
Peter has been reporting from the International Business Association Conference in Madrid and this post concerns a panel of corporate users who were asked whether subject-matter competence was an important factor in selection of a mediator. This question is one of those perennial topics that will always be debated. It is akin to the facilitative/evaluative dichotomy. Maybe Peter's post will settle it once and for all.
So who better to ask than corporate users? If subject matter competence is important, then surely the corporate users will tell us.
Peter reports that a survey was taken and that “The respondents came from 20 different countries....The survey concluded that, while utter ignorance seldom added value, [who can argue with that?] users preferred a mediator who could quickly grasp the facts of a matter and proceed to solicit authoritative and informed solutions."
A legal director for an engineering company “…does not seek out mediators with engineering or IT backgrounds. Rather, he looks for a bundle of mediation-related skill sets and past experience in complex multiparty disputes....But by far the most salient attribute for a successful mediation, he said, was the trust that the parties placed in the mediator."
[One lawyer was] “senior counsel to the largest food company in the world, and the disputes he runs into involve distributors, retailers, suppliers and consumers in every part of the globe. His ideal mediator combines logic and intuition; a concern for detail; and the knack of an empathic listener. He noted that commercial disputes even financial ones are seldom dry, but instead involve personalities, risk of loss of face, and other human attributes just as much as more personal claims do. The question of subject-matter expertise was of little importance to [him], compared to these essential qualities in a mediator who must be expert in a process that, at heart, is aimed at cost effectiveness. A lack of industry expertise has never caused a failure of the mediation process."
“On the other hand, [another lawyer] deals largely with cargo airlines and shipowners …. The culture of maritime practice, in his opinion, is an essential attribute for the understanding and resolution of these disputes, and he has used industry experts for years. It is important to him that he employ good negotiators with high mediation skills, but who know the practices and the expectations of the maritime industry intimately."
The head of technology for a UK company strongly prefers “generalist mediators, who can humanize engineering problems and conduct sessions in a manner to solicit human solutions to them…."
“The final speaker [who was] General Counsel France for General Electric Company [which] puts mediation clauses into as many contracts as it can” said that “what I am looking for is a decent human being.” What a concept!
So there we have it: the ideal mediator of business disputes. Someone who is a decent human being, has a bundle of mediation-related skill sets and who can even humanize engineering problems. An empathetic listener, whom the parties trust, who can call upon logic and intuition as well as a concern for detail. An expert in a process that is aimed at cost effectiveness. And, at least in some cases, a person who understands the expectations and practices of the industry. I guess that about sums it up. Wouldn’t you agree?
Friday, October 23, 2009
HOW CAN I GET MY MEDIATOR TO BE EVALUATIVE?
I remember being asked this question a few years by a lawyer who was in the middle of a mediation of a complex case. When I asked who the mediator was, she answered with the name of a retired judge. I was surprised at first since we often hear about former judges who supposedly cannot resist the temptation to evaluate every set of facts that comes before them.
I continue to hear similar expressions of frustration about mediators, with or without judicial backgrounds, who refuse to give evaluations. Why should this be so? While I did write recently about the importance of being effective as opposed to just evaluative, parties ought to be able to get evaluations when they want them.
If what parties really want is an evaluation, the answer is simple. Ask for it up front when hiring the neutral. There are processes variously known as neutral evaluation, non-binding arbitration, or early case assessment which are designed specifically for this purpose. These processes can be used on their own, or they can be combined with mediation if the parties so choose.
Early this year I was hired to give a neutral evaluation in a commercial real estate dispute. In talking with the parties beforehand I learned that while they were interested in exploring settlement options their real objective at the time was to obtain my opinion on the merits of their positions. To satisfy their needs, we combined two processes. We conducted a mediation that included a neutral evaluation. The advantage of this approach was that the evaluation could be given in a setting that was confidential under California law and could not be used as evidence if the matter did not settle.
The point here is that both parties to this case wanted the process to be primarily evaluative. It was not like a situation where one party is expecting the mediator to be evaluative and the other party wants the mediator to refrain.
When parties hire a mediator, they need to be of the same mind about the process. Otherwise the result will be like splitting a steak with your partner when one of you likes it rare and the other likes it well done. Somebody is going to get indigestion!
Every Action done in Company, ought to be with Some Sign of Respect, to those that are Present.
George Washington’s 1st Rule of Civility
I continue to hear similar expressions of frustration about mediators, with or without judicial backgrounds, who refuse to give evaluations. Why should this be so? While I did write recently about the importance of being effective as opposed to just evaluative, parties ought to be able to get evaluations when they want them.
If what parties really want is an evaluation, the answer is simple. Ask for it up front when hiring the neutral. There are processes variously known as neutral evaluation, non-binding arbitration, or early case assessment which are designed specifically for this purpose. These processes can be used on their own, or they can be combined with mediation if the parties so choose.
Early this year I was hired to give a neutral evaluation in a commercial real estate dispute. In talking with the parties beforehand I learned that while they were interested in exploring settlement options their real objective at the time was to obtain my opinion on the merits of their positions. To satisfy their needs, we combined two processes. We conducted a mediation that included a neutral evaluation. The advantage of this approach was that the evaluation could be given in a setting that was confidential under California law and could not be used as evidence if the matter did not settle.
The point here is that both parties to this case wanted the process to be primarily evaluative. It was not like a situation where one party is expecting the mediator to be evaluative and the other party wants the mediator to refrain.
When parties hire a mediator, they need to be of the same mind about the process. Otherwise the result will be like splitting a steak with your partner when one of you likes it rare and the other likes it well done. Somebody is going to get indigestion!
Every Action done in Company, ought to be with Some Sign of Respect, to those that are Present.
George Washington’s 1st Rule of Civility
Friday, October 16, 2009
AN OFFER HE CAN’T REFUSE
Marlon Brando will always be remembered for saying: “I am going to make him an offer he can’t refuse.”
Vito Corleone knew how to make his adversary aware of what was in his best interest. Underworld figures can win if the other side believes that they will be better off by accepting a proposed (or actually an imposed) solution rather than continuing with their preferred course of action.
When we get into disputes in the civilized world we can also make parties offers that they can’t--or at least shouldn’t--refuse. If the offer is in their best interest, as well as ours, then it is the classic win-win situation.
Our difficulty is the phenomenon known as reactive devaluation. The immediate reaction of the other side is to devalue, disbelieve and reject whatever we have to say. They don’t trust us, and they probably don’t even like us. They may think that we are acting like the Godfather, using tactics like extortion and blackmail. How often have I heard those words used in my mediations?
Here is where the mediator can be the true godfather (small “g”) looking out for both sides and helping them to see what is really in their best interest. Before a mediator can take on this role s/he must first spend enough time with the parties to establish a relationship of trust and rapport, but it is worth doing. Of course, the mediator must also have a sincere interest in helping each side to discover a mutually acceptable solution.
I have never had a party say to me in mediation what Marlon Brando said in the movie, but maybe someday it will happen.
Trust that little voice in your head that says, “Wouldn’t it be interesting if…,” and then do it. Duane Michals, photographer.
Vito Corleone knew how to make his adversary aware of what was in his best interest. Underworld figures can win if the other side believes that they will be better off by accepting a proposed (or actually an imposed) solution rather than continuing with their preferred course of action.
When we get into disputes in the civilized world we can also make parties offers that they can’t--or at least shouldn’t--refuse. If the offer is in their best interest, as well as ours, then it is the classic win-win situation.
Our difficulty is the phenomenon known as reactive devaluation. The immediate reaction of the other side is to devalue, disbelieve and reject whatever we have to say. They don’t trust us, and they probably don’t even like us. They may think that we are acting like the Godfather, using tactics like extortion and blackmail. How often have I heard those words used in my mediations?
Here is where the mediator can be the true godfather (small “g”) looking out for both sides and helping them to see what is really in their best interest. Before a mediator can take on this role s/he must first spend enough time with the parties to establish a relationship of trust and rapport, but it is worth doing. Of course, the mediator must also have a sincere interest in helping each side to discover a mutually acceptable solution.
I have never had a party say to me in mediation what Marlon Brando said in the movie, but maybe someday it will happen.
Trust that little voice in your head that says, “Wouldn’t it be interesting if…,” and then do it. Duane Michals, photographer.
Saturday, October 10, 2009
EVALUATIVE OR EFFECTIVE?
I have been thinking about my colleague Victoria Pynchon's recent post on evaluative mediators.
There is a saying that "less is more." Or as we are somtimes told: don't overdo it, or don't try too hard. How does this advice apply to mediators?
In our eagerness to settle cases, we can sometimes be tempted to say things that would best be left unsaid. The most frequent temptation is to inject our own opinions or evaluations into the equation, whether they are needed, wanted or not.
Lest I be misunderstood, I have seldom if ever refused someone's request for my views on the issues. I will also confess that I have found it necessary at times to offer my unsolicited neutral point of view when I could see that someone was about to get him/herself into real trouble by pursuing an untenable position. I have always done this in a private caucus in order to avoid embarrassment or an appearance of partiality. In these rare instances, the parties have always been willing to listen and appreciative of the help.
I am also mindful of the fact that experienced and sophisticated users of mediation want analytical assistance from their mediators. (See my September 1 post on a "High Quality Mediation.")
One way that we get into trouble, however, is in the situation where one side wants us to be evaluative by agreeing with their position and then persuading the other party to go along. Here, we need to very careful, remember our obligation to remain impartial and follow the Biblical admonition that no person can serve two masters.
There is a downside, too, to the use of unsolicited evaluations when they are given in the wrong way, and especially when they relate to an offer to settle. Writing in the July 2007 issue of the Texas Bar Journal Online, attorney Lucian Adrian Rodriguez noted that "..strong arm tactics negatively affect the non-accepting party's opinion about the mediator and the mediation process. This is why the better mediators refrain from giving their own opinions about the offer or proposal, and go to great lengths not to force one party, or any party to accept an offer or proposal." In other words, these tactics will often backfire and result in a failed mediation.
Having a little humility when mediating can never hurt. The parties and their counsel usually know (or they should know) more about their cases than we do. If the lawyers are doing their job, they have already done their own evaluations and may not appreciate being second-guessed.
Many successful mediators are known for being evaluative, but the best of us are known for being effective because we have lots of other tools in our toolbox and we know how and when to use them. Which would you prefer?
There is a saying that "less is more." Or as we are somtimes told: don't overdo it, or don't try too hard. How does this advice apply to mediators?
In our eagerness to settle cases, we can sometimes be tempted to say things that would best be left unsaid. The most frequent temptation is to inject our own opinions or evaluations into the equation, whether they are needed, wanted or not.
Lest I be misunderstood, I have seldom if ever refused someone's request for my views on the issues. I will also confess that I have found it necessary at times to offer my unsolicited neutral point of view when I could see that someone was about to get him/herself into real trouble by pursuing an untenable position. I have always done this in a private caucus in order to avoid embarrassment or an appearance of partiality. In these rare instances, the parties have always been willing to listen and appreciative of the help.
I am also mindful of the fact that experienced and sophisticated users of mediation want analytical assistance from their mediators. (See my September 1 post on a "High Quality Mediation.")
One way that we get into trouble, however, is in the situation where one side wants us to be evaluative by agreeing with their position and then persuading the other party to go along. Here, we need to very careful, remember our obligation to remain impartial and follow the Biblical admonition that no person can serve two masters.
There is a downside, too, to the use of unsolicited evaluations when they are given in the wrong way, and especially when they relate to an offer to settle. Writing in the July 2007 issue of the Texas Bar Journal Online, attorney Lucian Adrian Rodriguez noted that "..strong arm tactics negatively affect the non-accepting party's opinion about the mediator and the mediation process. This is why the better mediators refrain from giving their own opinions about the offer or proposal, and go to great lengths not to force one party, or any party to accept an offer or proposal." In other words, these tactics will often backfire and result in a failed mediation.
Having a little humility when mediating can never hurt. The parties and their counsel usually know (or they should know) more about their cases than we do. If the lawyers are doing their job, they have already done their own evaluations and may not appreciate being second-guessed.
Many successful mediators are known for being evaluative, but the best of us are known for being effective because we have lots of other tools in our toolbox and we know how and when to use them. Which would you prefer?
Thursday, October 1, 2009
SETTLING PERSONAL INJURY CASES
In my last post I discussed the need for thorough preparation before going to mediation. In particular, I noted the need to prepare the opposition, which may have surprised some readers. Why, you might ask, should I prepare the opposition as well as myself? Why can’t they prepare their own case?
Sounds fair alright, but if you are the plaintiff you need to give the insurance carrier every reason that you can think of to put the highest possible value on your claim. Don’t count on them to find those reasons for themselves; they might be too busy thinking of reasons to do just the opposite.
Some injured parties and their counsel will come to a mediation with a “hide the ball” attitude. Rather than lay out all of their evidence, they prefer to keep their best points hidden so that they can surprise the other side at trial. This strategy is almost always wrong.
First, the vast majority of cases are settled, so there will not be a trial. Even more importantly though, insurance carriers and their counsel will do their internal evaluation of your case before the mediation and make a determination of what they are willing to pay in order to settle. You want them to be looking at your strong points when they arrive at that number.
None of us like surprises, except on our birthdays or other festive occasions. If you conceal your good evidence and then decide to reveal it later in order to support a higher settlement demand, you will only irritate the other side.
The mediation is the most important event in your case. The day of the mediation is the day when it should be resolved. Prepare thoroughly, lay all your cards on the table, and give the defense everything that they will need. Do it well before the mediation so that they will have time to take all of the facts into account.
Sounds fair alright, but if you are the plaintiff you need to give the insurance carrier every reason that you can think of to put the highest possible value on your claim. Don’t count on them to find those reasons for themselves; they might be too busy thinking of reasons to do just the opposite.
Some injured parties and their counsel will come to a mediation with a “hide the ball” attitude. Rather than lay out all of their evidence, they prefer to keep their best points hidden so that they can surprise the other side at trial. This strategy is almost always wrong.
First, the vast majority of cases are settled, so there will not be a trial. Even more importantly though, insurance carriers and their counsel will do their internal evaluation of your case before the mediation and make a determination of what they are willing to pay in order to settle. You want them to be looking at your strong points when they arrive at that number.
None of us like surprises, except on our birthdays or other festive occasions. If you conceal your good evidence and then decide to reveal it later in order to support a higher settlement demand, you will only irritate the other side.
The mediation is the most important event in your case. The day of the mediation is the day when it should be resolved. Prepare thoroughly, lay all your cards on the table, and give the defense everything that they will need. Do it well before the mediation so that they will have time to take all of the facts into account.
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