ADR CORNER
Harnessing Settlement Momentum for a Successful Mediation
AL LASORTE , JR .
Have you experienced a mediation which starts out like this – negative body language from all parties during the initial joint conference , and your clients privately expressing negative thoughts about the other side – about how greedy , untrustworthy , or sneaky they ( and their counsel ) are ? Then , after a few hours with little substantive progress , it seems like settlement has no chance .
Not an uncommon scenario . Yet , many mediations that start this way still end up settling . An interesting thing happens 3 / 4 of the way through . Momentum shifts in both rooms from active resistance to active cooperation . And after some more hard work on all sides , the case eventually settles .
An unpromising beginning morphs into a successful settlement . How , and why , does this happen ? Several factors can contribute to this momentum shift :
1 ) Time in the room . Mediation is foreign processes to most . Parties can be nervous coming in , not knowing what to expect , and mistakenly thinking it ’ s smart to act tough . Spending time with their counsel in a conference room ( or a Zoom virtual breakout room ) can settle clients down and they start to loosen up .
2 ) The mediator as the voice of reason . Lawyers who like their cases , and their clients , can end up “ preaching to the choir ” about the strength of cases , causing unrealistic optimism , in turn limiting the clients ’ willingness to compromise . An effective mediator can often defuse this through some frank discussions with the parties , with them gradually realizing there are two sides to the story and their cases aren ' t slam dunks . This often takes multiple discussions throughout the day before it sinks in .
3 ) Seeing movement from the opposing party . Nobody wants to bid against themselves . And posturing and tough talk in initial sessions serve only to widen the gap between the two sides . Minimal moves are usually met with equally minimal responsive moves , resulting in frustration on both sides . But when one side eventually sees real movement from the other , it can loosen them up , helping move them from “ we ’ ll see them in court ” to “ let ’ s see how favorable a number we can get them to .”
4 ) Humanizing the opposition . We often assume the worst motives in others , and the best in ourselves . In mediation , this can mean seeing the opposition as evil , or greedy , or _________ ( fill in any unflattering adjective ). Parties don ’ t see or hear what goes on in the other side ’ s room , or how their opponents act . But the mediator does . General reports from the mediator that the other side truly is making an effort can eventually help turn the tide .
How can you increase the chance of seeing this momentum shift at your next mediation ?
1 ) Start with realistic demands . My biggest mediation pet peeve is plaintiffs whose opening demands are higher than their “ best day in court ” number . ( I hate when I hear “ But we need to start with a cushion so we ’ ve got some room to move !”) The near-universal response to such a demand is a minimal defense counter . After a couple of hours , even with “ reductions ,” the plaintiff is still near their actual “ best day in court ” number and the defense feels like it ’ s being played . The mediation goes south from there .
My strongest advice to both sides is this - start with a compromise number . Tell the other side it ’ s a compromise , and that you expect compromise from them as well . You will save hours of wasted time and will send the “ I ’ m reasonable ” message the other side needs to hear in order to get reasonable themselves .
( Continued on next page )
PBCBA BAR BULLETIN 6
UPCOMING PBCBA SOCIAL EVENTS
Wednesday , January 4 th 4:00 P . M . - 5:30 P . M . Bar Office Wine Down Wednesday
Monday , January 9 th 12:00 P . M . - 1:00 P . M . Live via Zoom Lawyers for Literacy Book Club Discussion # 5 - " Less "
Wednesday , January 11 th 9:00 A . M . - 10:00 A . M . Bar Office Workers ' Comp Committee : Coffee Talk with the Judges of Compensation Claims
Thursday , January 12 th 5:30 P . M . - 7:30 P . M . Waterway Cafe - PBG
NCS & Solo Committee Happy Hour
Tuesday , January 24 th 5:30 P . M . - 7:30 P . M . 123 Datura - WPB Paralegal Committee Happy Hour : New Year - New You
Thursday , January 26 th TBD
YLS January Happy Hour
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