12 Jun How To Get More / Pay Less At Mediation: Two Sides Of The Same Coin
My mediation practice typically involves disputes around money. Plaintiffs seek to maximize their recovery at mediation. Defendants seek to minimize their payout. Perhaps surprising to some, the strategies and tactics to achieve these objectives are virtually the same.
What follows is not revolutionary, but helpful to remember as you embark on the steps leading to and at mediation.
Schedule the Mediation at the Optimal Time
- Speak with opposing counsel to determine what they need and plan to do in advance of the mediation. Communicate similar information on behalf of your client.
- Allow time for undertakings to be satisfied.
- Allow time for expert reports to be obtained, delivered and digested by parties opposite in interest.
- Allow time for decision-makers to process the information and evidence produced in preparation for the mediation to the extent that this may affect targets, objectives and authority.
- Consider mediation in close proximity to either the pretrial conference or trial.
Select an Appropriate Mediator
- There are different horses for different courses.
- Will the parties and their lawyers be best served by an evaluative approach or a more facilitative approach?
- Are there race, religion, cultural, age or gender issues which need to be considered?
- Does someone need to hear from an authority figure?
- Conversely, will an authority figure get in the way of the process and your objectives?
Deliver Your Mediation Memorandum Well in Advance of the Mediation
- The mediator will read your brief regardless of when it is received. However, the mediator is not your primary target audience.
- For plaintiffs, the brief should be delivered at least 14 days in advance and preferably 30 days in advance of the mediation if you want to influence the authority brought to the mediation by the insurance claims professional.
- For defendants, the brief should be delivered at least 14 days in advance of the mediation if you want the plaintiff to read your brief and to allow time for the plaintiff and their lawyer to meet to discuss its content.
- The briefs should never contain evidence not previously produced.
- Recall the importance of primacy and recency.
- Less is more.
Mediation Openings Should Be Carefully Constructed and Thought Out in Advance of the Mediation
- Never read your memorandum.
- Provide new information since the time you delivered your brief, if applicable.
- Respond to the opposing brief to the extent that you have not already done so in your brief.
- Identify major areas of disagreement which will influence the negotiation and offer constructive suggestions as to how that disagreement may be addressed.
- Consider speaking about one or two of the most important topics or themes in your brief.
- Do not slavishly follow the format or order of your brief.
- Recall the importance of primacy and recency.
- Less is more.
Negotiations Are the Clearest Form of Communication at Mediation
- It is imperative to have a realistic view of your ultimate objective or outcome at mediation.
- Settlement demands made at three to four times your ultimate objective are arguably a waste of time and counterproductive.
- Similarly, settlement offers made at 25% to 33% of your ultimate objective are a waste of time and counterproductive.
- Settlement demands and offers made at 2X and 50% of X, respectively, start to create risk and prompt meaningful discussions in caucus.
- Settlement demands and offers made at 1.25X and 75% of X, respectively, create very significant risk and very meaningful discussions in caucus.
- If you are at or close to your target objective at mediation and your bargaining partner is not in the same ballpark, it is probably prudent to consider terminating negotiations. At minimum, it is advisable to speak with your mediator as to whether they believe your bargaining partner is likely to get into your settlement range.
Success at mediation is not achieved by accident. It is the result of a carefully considered and executed strategy.
Following the foregoing approach will not resolve a matter which was destined not to be resolved. However, it will give you the greatest opportunity to achieve your objectives.
About Vance Cooper
Vance Cooper is principal of Cooper Mediation Inc. Vance devotes 100% of his professional time to mediating primarily personal injury and insurance cases. He specializes in multi-party and complex mediations.
Vance can be reached at vance@coopermediation.ca or at (647) 777-4011.
To schedule a mediation with Vance, visit: https://coopermediation.ca/vances-online-calendar/.