1. Look For and Acknowledge Common Ground. For example, if the plaintiff is asserting multiple injuries from an accident and the defense are able to acknowledge that certain injuries appear to have been caused by the accident, say so! The defense is offering money at mediation for a reason, instead of just arguing the defenses that justify a low offer, acknowledge the injuries that are reasonably related which justifies the substantial money the defense is putting on the table.
2. Avoid Tit-for-Tat. If the parties get caught up in a dollar-for-dollar, Tit-for-Tat, negotiation model, it takes away each party’s ability to create cooperation and value through creative integrative bargaining. Just because the defense makes a slight concession doesn’t meant that the plaintiff is prevented from making a more generous gesture. You’d be surprised how well this can be received and reciprocated, which moves the negotiation into a cooperative value building model.
3. Think Outside The Box. At the end of the day, every personal injury settlement comes down to money, but the process of getting there is critically important. Value can come in surprising ways if you don’t limit your thinking or your ability to listen to and understand the other party’s positions and interests. I was involved in a personal injury slip & fall case where the defendant was a home improvement chain. The plaintiff was in the business of buying and flipping properties. At mediation, the defendant offered a sizeable gift card as part of settlement in an effort to close the gap. The plaintiff was thrilled with this idea and the case was settled.
It is so easy to get stuck in our boxes of pre-conceived notions, expectations, and habits, and force settlement negotiations into the comfortable and familiar competitive/distributive bargaining model. It’s the easy answer to The Prisoner’s Dilemma. These boxes have become such an innate part of our thinking that we don’t even see the boxes any more. Take this puzzle as an example: without lifting your pen from the paper once you start, or retracing any lines, connect all of the dots by drawing only four straight lines:
Developing a creative strategy for avoiding exploitation while at the same time allowing room for cooperative bargaining is the key to maximizing settlement opportunities in mediation. The more you develop an ability to think outside the box, the more successful you will be faced with The Prisoner’s Dilemma. (Which is a hint to solving the puzzle; No one said you had to keep the lines within the confines of the dots.)
About A. Troy Hunter
Troy Hunter began his mediation career at the University of Washington School of Law, where he worked to resolve small claims litigation and community disputes through UW’s Mediation Clinic. He went on to win a Moot Court International Award of Excellence for skills in Mediation and Negotiation. As a civil litigator, he has successfully negotiated the mutually satisfactory resolution of hundreds of cases on behalf of both plaintiffs and defendants. He lends his success to being creative, listening closely to what is being said and, as an avid poker player, being able to read people to get a sense what is not being said. He received his mediator certification from the internationally recognized program at the Straus School for Dispute Resolution at Pepperdine University, School of Law, in Malibu, CA. He joined Pacific ADR Consulting, LLC as a neutral in May 2017.