A monthly series of short articles on successful mediation
advocacy.
Tip # 2: “No Surprises Please!”
Here
is the familiar scenario. In a wrongful death, elder abuse case against
a health care company, plaintiff’s counsel demanded $750,000
two months before the mediation. The defense attorney figured that
$250,000 - $400,000 would settle the case, and planned to pull for
the lower end of the range on a dangerous case. The carrier evaluated
the case accordingly. At mediation, plaintiff made an opening demand
of $2.5 million. The defense team was furious. They had no ability
to negotiate in that realm, and had wasted time and money preparing
for a very different negotiation. A variation on the theme is when
one side springs new, devastating evidence for the first time at the
mediation, shifting radically the realistic range for negotiation.
In either case, the surprise tactic renders the opponent unable to
participate (without more time to evaluate the new position or evidence),
wastes resources, and destroys trust needed to best negotiate resolution.
Why does this
happen so often in mediation? Often, it is simply lack
of preparation. If counsel does not really understand the merits of
a case or the client’s desires until the day before mediation,
there is little chance that the expectations of the opponent can be
well managed. Remember, managing the expectations of the opposition
before mediation is the key to a successful negotiation.
This problem
may also result from speaking loosely about settlement
numbers with opposing counsel. Once a number falls from your lips,
it is not forgotten. For instance, in a recent mediation the plaintiff’s
attorney complained to me that the defense was only at $50,000 after
3 hours, when defense counsel had suggested last month (and the plaintiff
had been told to expect) a real range of about $200,000. Be very wary
of loose talk about numbers.
There are
sometimes legitimate reasons for a last minute change of
position, even with diligent preparation. A key witness may be located.
The definitive new appellate case may appear. Sub rosa films, just
received, may prove that plaintiff is a fraud. Or, your client may
demand an “about face” in your position, justified or not.
What should
you do if positions must legitimately shift on the eve
of mediation? Immediately tell the opposition, and explain why. If
awkward, ask the mediator’s advice, and possibly arrange a pre-mediation
conference call with the mediator and opposing counsel. The professional
courtesy will be greatly appreciated. Even if you cannot reveal the
full reasons for the change in position, share enough information to
maintain your credibility. Informal sharing of new evidence may allow
the mediation to go forward fruitfully, or the mediation may go off
calendar, to allow discovery on the new issue (better than a failed
mediation). Often, the mediation session is converted into a valuable
informational session, with no expectation of final closure. In any
case, professional integrity and relationships are maintained, and
expectations may be adjusted appropriately. Advance communication to
avoid big surprises is the key.
Clever readers
will note that this article assumes some pre-mediation
sharing of positions, which the author views as critical. Many lawyers
are reluctant to do this. Next month, we will look at the importance
of “Pre-Mediation Negotiation.”