Most of the mediations I have conducted, ‘cried out for settlement.’ Usually, the parties reached agreement. For those that didn’t settle, the non-money issues usually prevailed. In most that went to trial, the verdict was rendered in money, not “certificates of justice.”
Few litigants have enough resources to pursue justice through litigation.
After decades of statistical examination, settlement values should be calculable. They aren’t. They can be measured, but not made predictable. They are quantified, in terms of money, but not justice.
In personal injury, insurance companies have tried to fix values for specific injuries. While the settlement ranges have dropped since 1990, the settlements have not become uniform. In construction disputes, the values of settlement have fluctuated with the rise and fall of both the real estate market, and availability of construction materials. In trust disputes, settlements vary with the stock/bond markets. Emotions usually run high.
We professionals can find settlement ranges for their disputes, but there is no precise index of value that will determine any specific outcome for every dispute. Since reasonable people are involved, why is this true? Obviously the facts and evidence are different in each case. Less obviously, emotions and the parties’ experience differ from case to case.
Various sources tell us that 98-99% of all lawsuits settle before trial. Thus, many professionals believe settlement is inevitable. It isn’t.
Let’s look at the basic issues in litigated mediations. Conventional wisdom tells us that all settlements are reached in the middle ground between the first reasonable offers made by each party. Not always. Most role-playing negotiating classes demonstrate that the reasonable ranges of settlement for identical settlement exercises can differ by up to fifty percent.
The different settlement values highlight differences in preparation and experience. In the everyday rough and tumble of negotiatons, the differences also include client emotions. Professional experience provides a set of expectations, and background to begin the discussion. The clients provide the consent to make any agreement. Emotions can derail the process.
When the litigants are informed about the pre-mediation offers and demands, they are more likely to accept the ides of settlement. Those who have no idea of the basics of their lawsuit (burdens of proof, general outcomes in the area, time to trial) often become intransigent about the value they will accept.
How can the advocate enable their clients to reach agreement?
- Use separate caucuses with the mediator apart from the other party, to review the basics of the lawsuit, status of evidence, new information that has just been gleaned.
- Talk to the other attorney outside of the presence of the parties. Sometimes the mediator is asked to present a compromise. “Here is what I can recommend” can be helpful.
- Declare a cease-fire. Recently we asked mediating attorneys to declare a ‘ceasefire with the other party. For one hour. The attorneys discussed the common facts of the case, with their clients and allowed me to interject the opinions and perceptions of the opponent. We reaffirmed the competing positions. They attorneys directed their clients focus to the opportunity to resolve the case. We agreed to defuse the language of the discussions. Within the hour, the parties reached an agreement.
By changing the language, the parties were able to change their focus. Anger is not inevitable. Hostility is a choice. The emotions remained high. The hurts didn’t suddenly heal, however, the tone changed.
It often helps to review priorities during heated negotiations. Take inventory of the issues that are most heated. You will know them better than the mediator. Because of the rules of confidentiality, feel free to address them to the mediator in separate caucus. During the mediation, try to recognize any negative patterns in the discussions. Before you declare an impasse, declare a ceasefire and re-establish a reasonable communication, you always have time to reach an agreement.