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Mediation Blog

Every civil case will eventually require a decision as to whether to accept a certain result through settlement versus marching on to an unknown result at trial. Both sides in a civil case need to independently make this analysis.

The Known versus The Unknown

Our built in human bias favors accepting the known versus the unknown. However, when a demand is too high or an offer is too low, the decision is much easier to make in choosing the unknown. However, there may be legitimate reasons for demands that are too high or an offer that is too low. If those reasons were discussed and evaluated, then even those cases with high demands or low offers could be settled.

Using Mediation to Evaluate the Known

The challenge at mediation is to get the parties to the point where they legitimately feel they now have a choice between a known settlement versus the unknown result at trial. When mediation breaks down, it is often because a party still feels there is too much uncertainty and they do not have a choice between the known versus the unknown at trial. Mediation results in a settlement when there is an overlap of interests for both parties to resolve the case with certainty. The question is what can the parties do at mediation so they can truly evaluate and decide whether to resolve their case?

The Three Requirements for Evaluation

There are three primary factors that influence how a monetary offer is evaluated, namely information, trust, and finality. These factors are related and influence each other. Any party considering a settlement will need information, trust, and finality in order to accept a monetary offer.

Sharing Information

The first step of the evaluation process will require that information is shared as to why the monetary offer was made and how it was calculated. This information normally includes factors impacting liability and the calculation of damages. It is here that the disputes as to the proof of liability and damages are crystalized and debated. This leads to an honest discussion of the issues where the parties can then evaluate each side's arguments. Arbitrary offers or those that are take it or leave it, without any discussion do not satisfy the need of the other party to understand and to be able to evaluate the offer.

Establishing Trust

The second step of the evaluation process requires trust in that the information being shared is accurate. If a party does not trust that the information is accurate or complete, the evaluation process is short-circuited. When there is a lack of trust, a party will feel that more information is needed. This prevents an analysis between the certain versus the unknown since the party is unable to evaluate the offer. In all instances, honesty and frank discussions are needed. Any type of deception, holding back, or incomplete disclosures will only derail settlement discussions. The great thing about mediation is that it is a confidential process so these type of honest discussions can take place without repercussions.

Conveying Finality

The third step of the evaluation process requires finality. Finality in this context means the best offers have been conveyed and there is nothing more to do than to evaluate. Every party at mediation needs to feel that either the highest offer or lowest acceptable demand has been made. Without finality, there is no compelling reason to make a decision as one can always think that there is a better deal to be had. At some point, mediation must result in best offers that are conveyed as final and best.

The Takeaway

In order to enhance mediation outcomes, the parties must be able to evaluate best offers so they can decide between a known settlement outcome versus the unknown result at trial. A known settlement outcome can be evaluated only when information as to why and how the offer was calculated, there is rapport and trust between the parties, and there is finality behind the offers as being best and final. It is only at this point that a party can truly evaluate an offer in terms of making a decision between the known and unknown. Prior to and during mediation, lawyers can enhance mediation outcomes by sharing information honestly, having candid discussion as to their views of liability and damages, and ultimately bringing finality to the process by conveying a best and final offer.

Less conflict. More resolution.

Patrick Russell

Miami Florida Mediator

Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation

I recently heard that the latest statistics suggest that 96% of all civil cases in Florida eventually result in a settlement. That naturally means that only 4% of all civil cases in Florida actually go to trial. The numbers and results are literally overwhelming with little room for debate. What are some obvious takeaways from that data?

Actively Work Towards Settlement

Logic would appear to dictate that if nearly all cases settle, then lawyers should be working their cases towards settlement. That means more time, thought, and resources should be dedicated to setting up a case for settlement than even trial. If there was a 96% chance that it is going to rain, are you still going to go all out with your plans for a beach day notwithstanding?

Settlement and Trial Preparation Are Not Mutually Exclusive

You can prepare your case for settlement while still preparing for trial. These activities are not mutually exclusive. Trial preparation and getting a case ready for settlement do not need to operate in silos independent of one another. There are elements of trial preparation that are crucial but also support efforts for settlement and they can be done at the same time.

Preparing a case for both settlement and trial is not complicated. In both instances, you simply need to map out the desired outcome for each. With the specific outcome as a goal, you then make plans for each step to get you to that goal.

Trial Goals

For example, in a trial, the goal would be a verdict for your client. Depending on the case, using the elements of proof from jury instructions will tell you what you need to prevail in your case. From there, you need to make a plan for what is needed in terms of testimony and evidence for each element of proof.

Settlement Goals

Similarly, for a settlement, the goal would be a resolution for a certain dollar amount or outcome that your client can live with. Then your objective is to convince the other side how that outcome is preferable to the unknown outcome that could take place at trial. This means challenging liability or defenses, as well as the amount of damages. The final secret sauce is to convince your client as well as the other side that control over a known outcome (the settlement) is preferable to limited control over an unknown outcome.

Timing is Everything

Obtaining and sharing needed information to evaluate risk must be completed prior to mediation. Again, this needed information is already something that you will be working on during trial preparation. Examples include: (1) the presentation of the parties, witnesses, and experts so their character, credibility, and opinions can be assessed; (2) the sharing of critical evidence that can determine the outcome of liability or assessment of damages; and (3) the resolution of any dispositive motions or evidentiary rulings that could impact trial. All of the foregoing is handled through the completion of discovery including all material depositions and obtaining orders on critical motions. In other words, all the cards are now on the table.

The timing of mediation should coincide with having all the cards on the table. Mediation is premised on the parties being able to objectively make good business decisions. Good business decisions can only be made when information is available. Parties are hesitant to change a position based on the unknown and rarely are good decisions made without having objective information.

Too often mediations are hampered by the fact that critical depositions have not yet been taken, discovery is not yet complete, experts have not rendered opinions, or critical motions are still pending before the Court. The common denominator is the unknown. And it is precisely the unknown that is preventing a party from making a full evaluation so a rational settlement decision can be made.

Prepare Parties For Success

Finally, the human element cannot be ignored. Human beings are emotional creatures and misplaced emotions can be a barrier to settlement. Emotions in the end are a defensive mechanism, which is often a sign that something is not right. I am not referring to mental illness, rather emotions often signal a lack of not being heard, a lack of trust, or frustration for not having all the information to make a decision.

When emotions arise, you must ask yourself what is causing them and what can be done to satisfy their need. This takes some reverse engineering but in most cases, all that is needed is information. Preparing the parties so they can objectively evaluate a case without emotions while also listening to the other side nonjudgmentally to gather more information is the recipe for success.

How does a lawyer prepare the parties for mediation in this context? You need to keep the parties focused on the goals for mediation, facts and nothing but the facts, and the information they need to make a good risk analysis. When a party falls off the rails, and that will happen, you need to be prepared to ask them how their actions or responses assist with achieving their goals for mediation.

When parties on both sides are working objectively and without emotions, they are more prone to share information, collaborate, engage in problem-solving, and make better decisions. All of this builds rapport and trust. With rapport and trust, the parties can make well-informed objective business decisions at mediation and that is precisely how settlements arise.

The Takeaway

Since the overwhelming majority of cases are going to settle, lawyers should proactively prepare a case for settlement sooner rather than later. Prioritizing settlement along with trial preparation is an efficient use of a lawyer's time and can ultimately reduce costs while enhancing client satisfaction.

Preparing a case for settlement and trial are not mutually exclusive activities. Mapping out your goals for settlement and trial will often benefit each other. For mediation and settlement purposes, timing is everything. Reducing the unknown by sharing critical information will allow the parties to make informed business decisions which enhances the chances of resolution.

Preparing the parties for settlement requires keeping them honest as to their goals for resolution and providing the space where facts prevail over emotions. When the parties are operating without emotion and share information, rapport and trust are built which leads to collaboration and joint problem-solving. This is precisely how you can set up your case for settlement success.

Less conflict. More resolution.

Patrick Russell

Miami Florida Mediator

Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation

Not all things go our way. We know this instinctively yet become so surprised when the unexpected or unwanted occurs. In a pressure situation with limited time to maneuver, this can result in great frustration, habitual responses, and shutting things down. Does this sound familiar?

Unsurprisingly, a mediation is one of those pressure situations with limited time. And guess what, things are not always going to go your way during mediation.

This can happen when you are confronted with a new fact, witness, piece of evidence, expert opinion, or legal argument that turns the tables on your case. Or, despite your brilliant advocacy, eloquence or skill, the other side just refuses to budge from their negotiating position. What is a poor lawyer to do?

Habitual Responses at Mediation

While many cases can and should settle at mediation, it is just a fact that not all will. The other side refusing to budge from their negotiating position will certainly impede settlement.

When this happens, all too often the habitual response is to double down and repeat the same arguments that already have been rejected. Another habitual response is to raise the stakes and make extreme demands or threats. The other prominent habitual response is to shut down, deem the mediation a waste of time, and call an impasse.

A Better Response: Pivot and Expand Your Goal to Learn Something New

Doubling down with the same arguments, raising the stakes, or making threats not only shuts down the mediation but builds a wall that impedes settlement later.

We should always be trying to build bridges not walls when it comes to resolution. While the case might not settle at mediation or even be ready to do so, that does not mean that it cannot down the road. I call this the planting of seeds for settlement.

One way to bridge the gap to settlement is to gather information during mediation. I do not mean that you are to use mediation as a discovery tool. No, to the contrary, what I am suggesting is that you make an intention to work with the other side so you both gather information that you both need to fully assess the case.

By gathering information, you can with the other side analyze its validity, assess risk, and address options. Change a fact and you can change a case or at least your assessment of it.

Shutting down the mediation where the parties have learned nothing new about the case and are in the same position as when they first started the mediation, is a lost opportunity. Not digging deeper is just an agreement to disagree on a very superficial level.

The Sharing of Information

If your case cannot be settled at mediation, at the very least pivot and make the effort to learn something new about it. Try to learn the precise reasons for why the other side feels so strongly against your position and what is the support for those reasons. You may find the other side lacks information or is relying upon wrong information.

This is usually not a one-way street. Think of it as show and tell. While you are trying to learn something new, be sure to educate the other side what your precise position is and what supports it.

Sharing information from your side not only encourages reciprocity from your counterpart but also gives them something new to think about and consider. Remember how changing a fact can change a case?

This is the essence of collaboration. If ever during your case, mediation is the perfect time to attempt collaboration. The honest sharing of information builds trust, rapport, and understanding, the hallmarks for making a good deal.

The Takeaway

I recognize that not everyone is going to want to share information with you, but you should at least have the intention to try to learn something new. Informed decisions require information. Sharing information during mediation builds rapport, trust, and allows the parties to make rationale business decisions. What is the worst thing that could happen, an impasse?

Less conflict. More resolution.

Patrick Russell

Miami Florida Mediator

Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation

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