Memorial Day For Me. Memorial Day For You?
As a point of personal privilege, I digress from my usual subject matter to remember a friend and hero and share with you his story for Memorial Day.
Each of us approach holidays, particularly national, three-day weekend ones, differently and with different thoughts. Perhaps too often with too little thought.
I confess, I am one of those who rarely gives much thought to many holidays other than being a respite from the stress of work. But, also probably like you, I have one that I can never put out of my mind. For me, it is Memorial Day.
Memorial Day is my day to remember Pat Haley. And, to wonder, one more time, why things happen the way they do.
Memorial Day, since 1971 controversially celebrated on the last monday in May, originated in the late 1860′s, independently in both the North and the South, as “Decoration Day”, a day set aside to remember those fallen in the American Civil War. Over the years the day observed evolved uniformly to May 30th of each year, became a remembrance of all Americans fallen in any war and finally received its official name by a federal law in 1967.
Ironically, that was the year Pat Haley died. April 18, 1967
One of the reasons veteran groups objected so strenuously to the moving of Memorial Day to one of the long weekend holidays in 1971 was the anticipation of the devaluation of the day to just another long weekend for commercial events or sleeping in.
I, for one, won’t be forgetting Pat on this coming monday.
Pat Haley, to those of you who didn’t know him, was Captain Patrick Lawrence Haley, my friend and one of those many young men who were called, and served, in Viet Nam.
Actually, I remember and think about Pat a lot. And, not just on Memorial Day. And the older I get, the more he helps me appreciate everything. But my sense of the unfairness of life also continues to build.
Pat, like me, was a recent graduate from college who found himself in 1965 in Ft. Wolters, Texas in primary helicopter training as the direct result of a little boating incident now referred to as the “Bay of Tonkin”. Upon entering the service as an “officer and gentleman” in 1964 courtesy of his voluntary college ROTC training in Illinois, like numerous other young men graduating at the time, Southeast Asia was not even remotely considered as a likely place to end up serving your country. We were still thinking how lucky we were not to be in a war in Cuba!
I met Pat in flight school the military way; alphabetically. Everything in military training begins with a line. And, every line in the military is alphabetical. And, as you might suspect you also spend a lot of time waiting in line in the military. So, somewhat naturally, most of the guys I got to know best had last names beginning with “H”!
Those incessant lines, and our friendship and conversations, continued to Ft. Rucker, through graduation from flight school. Then that same alphabet, likely, sent us to Southeast Asia, the same month, the same year and to the same funny-sounding name base in Viet Nam, “An Khe”. It even assigned us to the same First Squadron of the Ninth Calvary of the First Cavalry Division!
The only difference: Pat went to Alpha company, I went to Charley.
Now you would think that friends, only yards apart, would see each other frequently. But those were busy times. A recent statistic about the Viet Nam war startled me, but in retrospect, it probably was true. In World War II, reportedly the average soldier was in combat 10 days a year. In Viet Nam, the average soldier was in combat 240 days a year!
I would see Pat, occasionally, or at least wave as we passed, each simply trying to carry out that day’s orders.
But later, I would suddenly leave Viet Nam forever, leaving Pat and others I had grown to know and respect behind as I wondered about my own future.
In the years that followed, I rarely had the time to track down former service friends. Or, frankly, maybe I didn’t really want to know. Another story for another day. In fact, the more I discovered about the politics of Viet Nam, and my naiveté, the angrier I became. And, it continues. Likely, a “disease” of maturity?
But the day came when I discovered what had happened to Pat. It has haunted me since.
Pat died within days of when he should have been getting on a plane to return home! He, and four other of our “finest” died when their helicopter was shot out of the sky while on likely just one more of the missions he had survived for nearly a year.
Pat was my friend. But Pat was a genuine hero.
On an earlier mission in October of 1966, Pat, disregarding his own safety during intense enemy fire flying a “gunship”, had pinned down hundreds of enemy soldiers for over an hour while defending one of our trapped units, even finally landing between the two forces to pick up a wounded comrade despite the punishment he was taking from ground fire. Pat was awarded the Distinguished Service Cross, second only to the Medal of Honor, for those actions.
And, frankly, likely he and others had performed similar feats to that one, daily and repetitively, that were never recognized by any medal.
Medals are not why soldiers perform their duty. They do it for their fellow-man. And, what makes them special is that they are just ordinary guys and gals who, in spite of their own fear, still do such extraordinary things.
Over the years I have reflected upon why some of our best must leave us. I have not yet found the answer.
But I grieve for Pat and others like him who did not enjoy the next 45 years, and family and all that life can offer. And, on my Memorial Day, I will think, again, of Pat. And, others like Pat. And I will, again, thank them for their sacrifice for me and all of the others he, and they, touched.
Some of you have a “Pat”. And, you know well this Memorial Day holiday and its meaning. But, even if you do not specifically know someone like Pat, be very aware that you should.
Liberty really isn’t free.
An old writing instructor once told me, “it takes a long time to write short.”
And, in any writing, shorter is almost always better than longer. Have you ever noticed that if the first few words or so of any written letter or article don’t catch your attention, you are likely to simply quit reading it? It is the same in speaking.
Like Lincoln’s Gettysburg Address, a few well-chosen words will live far longer after they are spoken than a large number of words equally well intended but simply too long!
This same concept is true with your mediation opening statement. If you simply must give one, (i. e., “A Radical Idea? Consider Waiving Your Opening statement”, September 30, 2011) at least invest the time and effort to make it your most effective one.
The purpose of opening statement is simply to focus upon those few matters necessary to your negotiation strategy for that mediation. You are neither trying your case that day, nor attempting to obtain total acceptance by your opposition. You are simply trying to establish points upon which a compromise of opposing positions can be found.
Begin planning your opening by making a broad outline of every point you wish to make with your opening in this mediation. For an overview of what I mean by “this” mediation, see, “Mediation Opening statement: Some Initial Considerations“, March 1, 2011.
Then, make sure you also include honest factual and legal concessions and even admissions potentially against your interest (remember the advantages of confidentiality to gain credibility in the mediation setting!).
Try to remove highly disputed factual points for those clearly proven But, for certain, totally avoid law disputes that easily could have been remedied with a timely hearing. Debate over legal issues often, alone, doom mediation.
After listing each of these points, look for duplications. Then eliminate them to further narrow your focus to only those very few points that need being made at this particular mediation.
After organization of your now very limited points for your opening, select no more than one (1) easily handled exhibit, admissible into evidence, that clearly demonstrates each of your limited points.
Then, again, reduce those total exhibits chosen to only the very most demonstrable and irrefutable. Again, to strengthen your position and leave little for your opposition to counter.
Next, organize your highly limited points into a cogent, easy to follow pattern.
Such a pattern should be so obvious as to allow your opposition to practically recite, and in the same order, your points once they begin their own deliberations. And, this same easy pattern will also allow your mediator to follow your points, either in review of your position or in a slightly confrontational analysis with your opposition.
Feel free to carefully strategize your opening.
If liability is your strength, over-emphasize your opponents obvious responsibility early and often. However, if the pure exposure of your opponent to a potential of a large damage award is your best position, begin your opening with this strength, virtually ignoring your weaknesses of your own client’s possible partial or even full responsibility!
In short, this is an opening, not a debate! Because you are stating “obvious” points YOU have chosen, you need not “defeat” your opposition on every point, only impress them with your logic of the points YOU choose. (If they read this blog, surely they will cover any point you “choose” to omit in their own limited opening!)
However always begin ANY mediation opening with an (honestly) affable (nice and friendly) statement of your purpose for mediation: your willingness to seek a mutually satisfactory resolution to avoid, mutually, the emotional and financial cost, the lost time and the inevitable uncertainty of any trial. Remember your setting: you are seeking cooperation and understanding from your opposition, not their capitulation to your “demands”.
Another point to consider, and early, is the wise and early use of your invaluable “apology”. Always remember that one may “feel the other’s pain”, even if they believe they have done nothing wrong (including even bringing the legal action!).
Next, plan your opening point to be your strongest point. And, your last point of your opening, your second-strongest. Each of the other, limited, points should fall logically in your chosen “pattern” between the two.
And, always consider the use of a simple calendar or time line. At the least, imagine that someone was telling you a story. Could you keep oriented as to the sequence and dates of the events you are trying to convey? If not, a calendar is essential.
And, it saves words!
Now, set this all aside for at least a day or two!
Then, a day or more later, make one final review of your former work-product, removing every excessive word or point, to reach your final mediation opening statement.
(One constant: Always……. (Plaintiff or Defendant) have and use your most effective mediation tool, your future likely trial verdict form in summation of your points. Should you hold a weaker position on one issue or the other, it is “fair game” to isolate your summation to that part of your proposed verdict, ignoring your weaknesses. However, this is the one exhibit you must have. See, “Mediation Opening Statement: A Required Consideration…Your Likely Verdict Form“ August 9. 2011.)
With this organization, you now need only be short. Or, at least, if not short, very, very efficient with your time.
It is difficult to generalize about the length of your opening in terms of time. However, one simple test might be helpful to determine whether you are ready.
Can you give your opening with only minimal notes, using only your chosen exhibits and your memory of your organization?
If not, your opening may be too long. If it is not interesting and organized enough for you to remember your own presentation, likely it is not going to be attractive to your opposition who frankly comes with a different view of your dispute.
Many will never take the time that this type of mediation preparation requires. And, some will find mediation success without the effort. But those who take the time for the most effective opening statement will likewise be that much further ahead in the other preparation required for success.
These are the ones that will reap the largest rewards from mediation.
Midway through the first year of the newest significant requirements of Rule 1.720, Florida Rules of Civil Procedure, regarding Mediation, several questions are being raised, repetitively.
As, hopefully you know, section (e) of that Rule presently requires the timely filing and service of a “Certificate of Authority”, a notice to your opposition of those anticipated to be attending mediation with the required authority.
Despite the rather clear wording of the Florida Supreme Court rule many mediation parties still do not seem to be complying with the new law. And, clearly, many more attorneys seem oblivious to the clear threat of what their non-compliance could cost their clients (and them).
As always, with time, controversy and using the courts, each of these issues will be fully and legally settled. In the meantime, and perhaps in avoidance of the issues, and potential sanctions, I thought a commentary might be helpful.
First, is a certificate of authority really necessary?
Yes. Effective January 1, 2012, Rule 1.720(e) states:
Unless otherwise stipulated by the parties, each party,…shall file with the court and serve all parties a written notice identifying the person or persons who will be attending the mediation conference…,and confirming that those persons have the authority required by (Rule 1.720).
As is common in such rules, it seems universally understood that the term, “SHALL“, means that the certification is mandatory. (And, remember that the rules of procedure are historically the exclusive domain of the courts, and in this instance, by the Florida Supreme Court, who, ultimately is the final authority of almost everything involved with being a Florida lawyer!)
But, apparently still being missed, even now, are the potential threat of sanctions for non-compliance already contained in section (f) of the same rule, regarding Sanctions for Failure to Appear.
Section (f) now states: (Second paragraph:) The failure to file a confirmation of authority required under subsection (e) above, shall create a rebuttable presumption of a failure to appear.
And, in failed mediations, guess what is one of the most common complaints?
Answer: the opposition did not appear (with sufficient authority)!
As I warned in my earlier blog on this subject, “Be Advised: A Major Change in the Florida Rules of Procedure Regarding Mediation Procedure”, November 22, 2011, penalties for failing to meet this new requirement are unlikely to be sought when your mediation is successful. But, if it is not? Do you really want to give your opposition any additional ground to attack you?
Second, is there a specific form that is required for the certificate?
So far, no.
However, like many other “forms”, you might want to first create your own by simply tracking the rule, word by word. At the least it requires you to fully understand the substance of the requirements of the rule. Then, consider sharing and comparing with others how they are complying.
But, until a form is officially provided, it seems likely the courts will be very lenient to anyone who at least seems to have tried to fully comply.
Third, who has to file the required certificates of authority?
Some seem to believe that only “corporate” parties need file the certificate. After all, “individual parties obviously have the authority”.
As popular sports commentator, Lee Corso, would say, “not so fast!”. Look closely, the rule clearly states, “EACH PARTY”. It does not differentiate between types of parties.
(Other portions of the rule likely contribute to this confusion. And, to some other potential issues. However, I still hesitate to discuss these possible future problems with portions of the new rule for similar reasons to my avoidance last year.)
However, again, why would you want to even risk a sanction (or, worse, a possible defense to your own attack against your opposition for their failure) in NOT filing your certificate for any party you represent?
(An interesting side issue that this may present, however, is what will be the effect upon “pro se” parties? Already at a substantive disadvantage, it is not implausible to foresee that many represented parties may use any such procedural failure against a Pro Se party who fails to comply?)
Fourth, does the certificate require filing with the court?
I confess, I missed this potential issue when considering all of the other future issues of not including the mediator on the service list. But, as you can see from reading the express language of the above rule, this certificate must be filed with the court.
At the least, however, this filing resolves any potential issue of strict accountability for timely filing/notice, “10 days prior to appearing at mediation conference“. ( But, for example, does that mean notice timely sent, but NOT filed timely, is a failure to appear? Or, is such a notice that is sent and filed, but untimely, is still a failure to appear? These and other questions are still to be answered.)
Again, a word to the wise, don’t wait until the last moment! Unless you want your client’s name to appear in Southern 3rd, etc..
I close with a couple of positive observations about the rule change.
First, many attorneys representing corporate defendants, and particularly insurers, are applauding this rule change as beneficial to them (and thus to mediation success). They finally have an excellent reason to obtain an advance commitment for attendance from specified persons of their corporate entities. Unlike individual parties, often direct early consultation with corporate parties with authority is quite complicated even for their own attorneys.
Second, many plaintiff attorneys who are lax upon meeting pre-mediation summary deadlines, with this new court-sanctioned deadline, are using a similar timeframe for their summaries. As usual, anything your mediator can obtain prior to the mediation is valuable to your success. So, “whatever it takes”.
I still encourage attorneys who mediate with me to send me courtesy copies of their certificates for all of the contribution I believe it makes to their (and my) mediation success. See, “Florida Mediation Procedure: PLEASE, Send Your Mediator a “Courtesy Copy” of your Certificate of Authority“, March 30, 2012. So, again, I strongly suggest it is quite valuable for you to do so.
But, regardless, if you haven’t already begun to strictly follow the newest mediation rule change, make sure you now begin to timely file and serve your mediation certificate of authority for YOUR party!
In mediation, it is fundamental to successful resolution that both sides first be able to accept the same fact picture and then separately evaluate it. Differing evaluations can usually be mediated. Disputed acceptance of fact, often cannot.
Accordingly, it is foreseeable that in mediation any claim for possible future damages will always be subject to much more controversy between opposing sides than proven past ones. And, some future claims will be more problematic than others.
A recurring and conflicting issue for opposing parties in Florida personal injury mediation is acceptance and/or evaluation of a damage claim from an injured party with a “future surgical recommendation letter” when, at the time of mediation, the recommended procedure has yet to be elected, much less, scheduled.
As with any other issue in mediation, I believe it is first important for each side to try to understand the perspective of the other on that issue. With this understanding, each side can then seek to find better common ground on that disputed issue.
The common plaintiff’s mediation perspective is that once a physician writes a letter of recommendation of any future care that it is just a matter of time until the plaintiff will elect to have the recommended care, including surgery. Thus he/she is entitled to have that future treatment accepted by the defendant and included in their total damage evaluation.
The Plaintiff believes the values of future care must be paid so that, if needed, it will be available and payable.
The most common defendant’s mediation perspective is that if the plaintiff really needed any treatment, it would already have been performed. Any alleged need for future care, to any defendant, is considered speculative, and thus highly debatable. And the further in the future the projected care, and the more electable the procedure, the more speculative for any defendant to place any real merit, much less value, upon it.
The Defendant believes future medical expense should be paid only if proof is presently available that the future care will actually be undertaken!
This difference in perspective results in the forseeable inherent battle (“Bad Faith” is a word that also crops up a lot ) of the realistic mediation worth of any “letter recommendation” for future care, particularly surgery. And, particularly, when there are collateral questions to the recommendation, such as to the qualification of the physician or the objective basis of the recommendations.
But common ground for these issues can still be found in mediation with advance knowledge of these foreseeable differences in perspective by the opposing parties.
To find common ground, here are a few basics that both sides should consider.
If mediation fails, and trial is the next stop,what will your jury consider in deciding for you whether or not to award such future damage?
One irrefutable source is the Florida Standard Jury Instructions (presumptively the jury will follow them).
In most personal injury cases, the most common instruction given to the jury regarding future medical expense is: “The reasonable value or expense of …medical…care and treatment necessarily or reasonably obtained by the claimant…or to be so obtained in the future.” (501.2(b) FSJI)
And, in regard with automobile cases (presently), with ”proof ” (presumptively qualified medical testimony) of future medical expenses, the only modifier to the language given the jury is, “reasonably certain to (be incurred) in the future”. (501.4, Note 2, FSJI) (Note: Even in automobile cases, “permanency” is not required for a jury’s award of future medical expenses.)
Accordingly, despite the continued evolution of the confusing “magic words” often used/required for testimony to establish proper “proof” of future medical expense, ultimately, a jury need only be convinced, in most cases, that the debated future medical care is necessarily or reasonably, “to be obtained in the future“.
A careful examination of that wording, however, still leaves both sides with potentially a clearly different perspective of the required proof of any future medical expense .
Plaintiffs, will want and need to emphasize to any jury the reasonableness of the future treatment. And that it is not only reasonable, but eventually, using only common sense, will be necessary for relief of a presently known condition. And, of course, eventually it will be “obtained”.
Defendants, will emphasize the remainder of the alleged ”requirement”: Will it (really) be “obtained” (used/expended) in the future? Can it be considered reasonable if it is not to be used?
Both sides, however, to have any chance at mediation resolution, must at least have a full understanding of the basis these opposing positions.
Having the burden of proof at trial and thus at mediation, it thus behooves the Plaintiff’s counsel to take every possible step, and well prior to mediation, to lay the “trial-like” predicate for any future medical care with the decision makers of your opposition. That is, show proof that it is at least “more likely than not” the future treatment will become necessary and if possible, it is “certain” to be needed, even if not elected.
This then brings up the problem with a ”letter” (usually begrudgingly written without legal guidance by a physician) , alone, recommending any future medical care, being offered for support of this future damage claim. And, the comparative weight that should be given them.
Increasingly, for many of the reasons discussed herein, many defendants are simply unwilling to consider such recommended treatment not at least already elected. And, preferably scheduled. But, in some cases, not until after the treatment is actually undergone.
However, reasonable defendants are going to have to consider reasonable future treatment that even common sense suggests is reasonable and likely to be obtained in the future. And this is particularly true when the value of a claim already approaches policy limits and will likely clearly exceed them if treatment is elected.
The source of that common sense? The same as in trial. Objective evidence of injury related to the claim; medical records, medical tests, medical observations, radiographic studies. And, if possible, either legal-directed letters, or even affidavits, in similar form to testimony-predicates at trial, from qualified medical experts as to the “reasonable and necessary and even certain (probable?) needs of a claimant.
But, even then, there will always remain the issue of “election”. Will the plaintiff, really elect to have the procedure? On the other hand, is this really a good defense posture with any future jury?
Obviously, only the injured party can elect to undergo the risk of any treatment. But, all treatment has risks. And, surgery, as can be seen from the usual “informed consent” required of any patient PRIOR to surgery, is always hazardous.
A jury will know that. And, may or may not withhold compensation for future treatment shown necessary but still not elected at trial. After all, any juror can visualize that choice and the continuing possible future need.
There is probably no solution easily suggested to this repeated quandary. Among other issues is the obvious additional monetary cost necessary to obtain “more than a letter”. What needs to be suggested, to both sides, however, is that this issue is not going away.
And, it is always going to be even a greater problem if an injured person has no insurance or any present ability to pay for a recommended surgery. In case you haven’t noticed, most hospitals and surgeons won’t perform without pay, and in advance.
And patients forced to obtain care through borrowing or even “letters of protection” may, in the future, under certain circumstances, be allowed to explain those circumstances.
The unspoken headache for the insurance carrier is that to totally ignore a bona-fide surgical recommendation and not make SOME allowance for it is raises a real risk of drastically undervaluing a claim at a point at which less money paid could resolve the claim than required later. And, particularly if the “later” is after surgery has been performed.
And, very particularly if there is already a policy limit issue BEFORE the surgery and now, with the cost of surgery, the obvious value of the claim is well in excess of the limit not previously and timely tendered.
The unspoken headache for the Plaintiff is that many injured persons are genuinely afraid of surgery and, understandably will want to delay elective surgery (and particularly if the only reason for electing now versus later is only for increasing a present claim value.)
But the double headache is that most attorneys would prefer that, if surgery is to be undertaken, it should be undertaken BEFORE settlement “just in case”.
Under Florida law, should some mis-hap occur, not only is a negligent medical provider potentially responsible for any negligence, the original tortfeasor is TOTALLY responsible for a “bad outcome”, even if there is NO negligence. (And, by the way, a settlement before the surgery, in such a circumstance, may well expose the settling plaintiff’s attorney to criticism, if not a lawsuit, for an alleged premature settlement!
The answer? Once again, plan ahead.
If you’re the plaintiff and the major medical care you wish to have considered is truly a likely future procedure that will only require election, when finally needed, obtain written documentation of exactly the type you would require if presented at trial. Confer with your prescribing physician the documentary basis of that prognosis and share that objective documentation with your opponent.
If you are not prepared to do so, simply expect either an outright rejection of this portionof your claim, or, at the very least, a substantial discount.
If you are the defendant, at least carefully consider the collateral evidence available in support of any purported future care, using a common sense standard. Your jury will, if you don’t. And the outcome may become very, very painful.
There is no issue in mediation that cannot be overcome with advance preparation. If you are one of those planning upon using or discounting a “surgical recommendation letter” in your mediation, at least be forewarned. As the actress, Betty Davis, once said, “Fasten your seatbelt. It is going to be a bumpy flight”.
Not every mediation will end with a full resolution. Despite your very best efforts (and your mediator’s), sometimes your opposition is simply unprepared to resolve that matter that day.
If so, how do you end an unsuccessful mediation and then follow-up after mediation to achieve your greatest opportunity for still obtaining the option of resolution prior to trial ?
(Note, for the purposes of this discussion, we are directing our attention to a mediation that was intended, by both sides, as a final resolution mediation (as opposed, for example, to a pre-suit or discovery mediation.)
The answer is slightly different depending upon what “side” you hold: Plaintiff or Defendant.
If you are the Plaintiff:
First, end your mediation negotiation, one way or the other, with your lowest, “best” offer clearly on the table. And, one that realistically and commonly is LESS than that could occur by verdict at trial.
(Note: Your “best” position may still have to remain just a few dollars above your actual ”final” position for the usual last-minute negotiation that seems always to occur just before selecting your jury or beginning your trial. However, keep it to just a few!)
Second, followup, the next day, with this same lowest offer you delivered in mediation, presented as a technically correct proposal for settlement. (This may seem particularly hard in liquidated damage cases, but if this offer was unsuccessful at mediation, what have you now to lose?)
Make your proposal for settlement, regardless of whether, technically, there is insufficient time for the proposal to be valid. See, “Proposal For Settlement and Mediation: Part II: More Tactical Suggestions.”, February 28, 2012.
Third, immediately, also the next day, notice your case for trial!
(Unless already scheduled for imminent trial. which, as you already know, I always recommend for your maximum “final” mediation benefit. See, “Timing The Scheduling Of our Mediation”. January 28, 2012)
Alternatively, if you are already scheduled for trial, do SOMETHING to press toward trial. And do it as a matter of record! Written discovery, for one example, is inexpensive and quite “noticeable” to your opponent.
The point of this initial activity exercise is to get the attention of your opponent that you are now ”moving on, not waiting around for any more “voluntary handouts”.
Fourth, immediately further ratchet up, overtly and actively, your preparation for trial.
Even if you have to do some things, totally unilaterally, do a lot and do it often, and make sure your opponent knows you are doing it.
You can also accomplish this “notice factor” indirectly with the wise use of your secretary, para-legal or legal assistant talking with her opposite with your opponent, regarding scheduling, travel plans, calendar openings, et. Your staff talks to the opposing staff as much or more than you!
Fifth, do not discuss your recently failed mediation with your opponent. In fact, try not to directly speak, for at least a reasonable while, with your opponent.
And, if you must speak with your opponent, speak about anything, i.e. the weather, football, etc, but never mention the subject of your failed mediation, again. Pretend total disinterest, even if you are dying to settle.
(The problem with talking directly to your opposition soon after mediation, is that too much talk, directly or indirectly, always eventually includes the subject of settlement. However, you are now no longer speaking to anyone who has direct control over settlement! And, your best way to convey disinterest to the “real” person in charge is no communication at all. Trust me, your opposing counsel will report your lack of interest.)
Sixth, never again bring up the subject of settlement! You have made your best offer and now you are preparing for trial. Stop your begging! (That is how your opposition sees this recurrent subject being mentioned).
And, if the subject comes up, act totally disinterested until a specific, concrete new offer of additional money is actually made by your opposition.
If the defense attorney inquires with the usual ”what if’s” (and they will), your response must be simply that you are preparing for trial, and haven’t given it any more thought. However, you will forward on ANY new offer in view of the then existing circumstances for your client to consider.
Seventh, any interest you wish to exhibit about settlement should be made, only to and through your mediator. Your mediator should be a great source of testing any realistic possibilities. Or, not. And, if there is hope, let him/her make any continuing settlement interest inquiry without divulging your interest.
Any good mediator, given time and opportunity, can always keep both parties interested in settlement thinking about settlement without indicating who is the most interested!
The purpose of this post-failed mediation strategic ”positioning” by the Plaintiff is to remove from the opposition the impression held at your mediation’s conclusion that eventually the Plaintiff “will (unilaterally) get (more) reasonable”.
Someone with the opposition obviously believed your final position at mediation was unrealistically high and therefore likely will change as you approach trial.
By aggressively moving toward trial, without even discussing any further effort at settlement, you are reinforcing your firm belief in your “best” position and emphasizing that even if wrong, a third-party is going to have to decide the outcome.
The Defendant is left with little choice then but to either approach YOU about further negotiations or allow the matter to be submitted to the trier of fact. (The reason for making sure your last offer was really your last (and best) offer!)
If you are the Defendant:
First, end your mediation with the unspoken, but implied commitment that you may/will soon offer more in the future, after… (fill in the blank).
There is nothing that discombobulates the usual Plaintiff or their attorney more than thinking another offer may be coming! Or placing conditions on another future offer. Both have the effect of creating an inactive mode for the Plaintiff that has not really made their best position available.
Or, it often turns their attention to another more pressing settlement opportunity or impending trial.
Then simply wait to see if your “fish” will take your bait. Will they comply with your conditions in order to continue the discussion? Will they call to see if your client is still interested in settlement discussions? If they do, you have your answer, they know their “best” offer was not their really best offer.
If they don’t respond, their disinterest is still valuable information to consider as to the merit of your own evaluation and the firmness of their last offer.
Second, similar to the Plaintiff, the next day, send your proposal for settlement.
You even have the advantage of offering literally only one ($1.00) dollar should you reasonably believe you will prevail. However, you can also easily offer something close to your cost of defense and avoid any issue of reasonableness. And, since you know how much the Plaintiffs have rejected at mediation, you should be able to offer as much as your highest mediation offer.
Defendants sometimes routinely overlook the effect of any proposal for settlement upon a Plaintiff. (A full discussion for another day.) You should not.
Third, if the matter is not set for trial, simply avoid any mention of trial. Your best indication of how serious the Plaintiff about their position will be their showing of any interest or intent on actually getting a trial date.
And, if your trial date is already scheduled, wait to see what movement, if any, the Plaintiff really takes toward trial preparation, rather than meeting your latest negotiation requirements.
If there is no movement toward a trial or immediate trial preparation, again, you have some important information as to the actual firmness of their position.
Fourth, unless your client is pushing for trial, make the Plaintiff push the matter toward trial.
The Plaintiff generally has far more administration and expense to prepare for trial than the defense. Their activity, or not, will dictate your need for activity. And, the more information you have before your required activity, the better your recommendations to your client can be.
Fifth, try to speak, directly and often, with your opponent. Keep planting the seed of potential settlement.
Although some Plaintiff’s attorneys relish the thought of another trial, most prefer settlement (after all, it is where the money is really made). And, as long at they believe a settlement is possible, they are not progressing toward trial. And, not progressing towards trial is less expensive for your client and delay is always beneficial to any defendant.
And direct communication is always a better barometer of what your opponent is really thinking. In general, many lawyers (and most lay persons) simply say too much for their own good!
And don’t forget to inquire of your staff what they know!
Sixth. Similar to the Plaintiff, show absolutely no personal interest in settlement except through your mediator.
Your primary advantage is to suggest that you are a “hired gun” without any input or authority, merely preparing to defend unless either your client changes his mind or the Plaintiff’s client accepts the already too-high offer.
The purpose of this defense positioning is that someone on the side of the Plaintiff at your mediation close believed your best offer has yet to be offered. And, that, with time, expense and rapidly approaching trial, your client will re-evaluate their position and offer more.
Your defendant’s response by these in-actions is designed to demonstrate that, at least as far as what was known at mediation, a very reasonable offer was made and unreasonably rejected. You are thus simply awaiting the reality to set-in and have the matter resolve at your client’s last position.
Any movement you make otherwise will weaken that illusion.
How, then, if both sides take these opposing positions of “disinterest”, is settlement to be pursued?
The common denominator of each side? The same settlement posture: “We have made a very reasonable offer to settle and our only remaining interest is in seeing which one was right by the verdict of a third-party!”
But, the common error? One side or the other was clearly WRONG with their final, “best” position at mediation! And, ultimately the fact-finder will soon ”disclose” the party who was most wrong.
Thus, the beauty of this tactic of “non-interest” stand-off by both sides, is that eventually, the side that is the least sure of its “best” position will move, unilaterally, toward trying to re-establish settlement discussions. You can bet on it.
Accordingly, make your really best effort at mediation , but, if you are still unsuccessful, end your mediation appropriately and try these steps. I think you will be pleased with the result.
Florida Mediation Procedure: PLEASE, Send Your Mediator A “Courtesy” Copy Of Your Certificate of Authority!
As I predicted, a large flaw in the recent change to mediation procedure in Florida, requiring advance notice of those who will be attending mediation with the required “full authority”, is already rearing its ugly head.
The rule’s flaw? The LACK of any requirement to send a copy of the “new” Certificate of Authority to your mediator!
As I pointed out in my earlier “notice to the wise”, “The 2012 Mediation Rule Changes: A Few More Concerns”, February 3, 2011, this obvious flaw in the rule is making itself felt each time any party believes that their mediation did not receive the attention it should have.
Guess, when the issue of proper attendance arises, who is the first person asked to review the matter? That’s right, the mediator.
And, then guess who is the only one that is not on the official list to be sent this critical advance information? Right again, the mediator.
Do yourself (and your mediator) a favor. Right this minute, walk over to your legal assistant, para-legal or secretary (or all three) and tell them that in the future, for each such Certificate of Authority, to ALWAYS show the mediator on either the service list or at the least, a “CC”. (We haven’t used carbon copies for a long time, but “courtesy copy” will be fine!)
(And, until your opposition will do the same, please consider sending a copy of your opponent’s Certificate that you receive, as well!)
As important as it is to let your mediator know who is coming with authority for the sake of possible future sanctions under the same rule, there are other equally, if not more, important reasons for this critical advance information for your mediator.
First, it is critical for your mediator to know which, if any, of your parties are going to appear. Despite the rule requiring party attendance, mediations still are being “avoided” by parties, routinely, for various and sundry reasons. A risky thing, but unfortunately, a common occurrence.
Letting your mediator know the specific name of each party who WILL be present is very helpful in allowing a relationship to begin between that party and your mediator. (As is knowing who will NOT be present.)
And, in the case of corporate parties, the specific name of each designated corporate representative, is equally important. Often such a notice is the only official personal identification that your mediator will have of them until after being introduced to them just as mediation begins!
Recording correct names and corporate positions and relationships in the crush of simply getting everyone in position for the opening conference is difficult for any mediator.
Second, it is critical to know the name(s) of the insurance professionals, the official representative of any and all insurance carriers who will be present. Again, knowing the actual names of these all-important (and mandatory) participants allows your mediator to begin a relationship with the person often most in charge of payment. And we all know the importance of payment to the success of any mediation.
And, hopefully, you will also include the correct name of each insurance carrier attending that is represented by that professional. In the present day, with insurance companies names being so numerous and difficult to pin down, this simple advance identification becomes another bit of critical information important to everyone at your mediation.
But most of all, simply establishing this advance basis for these early, direct and personal relationships with persons being met for the first time by your mediator is one of the most important tools for mediation success for any mediator.
Third, your mediator is required to keep an attendance report of those specifically in attendance and upon whose behalf they attended. In large groups, despite any mediators best efforts, such information, in writing, and in advance, is critical to accuracy of such attendance recording.
I do not believe future potential sanctions should be the only driving force behind this “Plea”, but anything that also allows your mediator more information, in advance of mediation, actually, aids your success, not theirs!
Hopefully the rules committee will address this clear notice problem by amending the rule and soon!. In the meantime, perhaps judges, including those who also follow my blog, will also include in their mediation orders that both a copy of their Orders of/to Mediation (no, we often do NOT get these, either!) and copies of all Certificates of Authority will be sent to the respective mediator in every mediation.
In the meantime, your mediator can never receive too much information. Put your mediator on every one of your notices used in mediation, PLEASE!
Mediation Tip: Litigators, Use Mediation To Move Your Case!
This suggestion will not be popular with many mediators. Like court reporters, scheduling is a large part of our practice. And, instability of scheduling is costly.
But, noticing your case for mediation is one of the litigator’s best available, and least used, strategies to push a case to more timely completion.
Many attorneys, on both sides of the aisle, complain about cases that never seem to capture the attention or interest of one side or the other, or both. Or, in complex matters, sometimes some activity seems without apparent direction and at a cost that seems out of proportion to the net gain in movement toward either resolution or trial. And, in some matters, there simply seems to be more interest in “churning” the litigation rather than concluding the dispute.
Despite the interests or motives of attorneys in any particular action, every client wants resolution, one way or the other. And, sooner rather than later. And, in the end, the happy client means much more to any attorney than any one action! (And, even if that doesn’t seem too important to you, you can bet it means a great deal to your boss.)
The key to this goal of an early outcome is having the power, unilaterally, to do something to move your case from the doldrums to some end point. And, sooner rather than later.
One technique, common to most knowledgeable trial attorneys, is to “notice something”.
Discovery is popular. Setting a deposition or sending something tangible to your opponent is something to show your client about your “movement” of their dispute. And, by the way, it is very important to fully understanding and evaluating your position in any litigation. But, it is also expensive. And, too much expense particularly in liquidated damage cases can doom settlement.
Some will opt for setting a hearing. Any opportunity to get the judge to notice that the matter is not moving forward is usually welcomed by parties, if not their attorneys. But getting a timely hearing with some judges and in some jurisdictions is often impossible. And, certainly not much of a push if scheduled too long in the future. Plus hearings can only move the matter so much.
And, most knowledgeable attorneys will eventually always opt for a unilateral notice for trial to press the matter forward or at least press the matter to some final conclusion. At the least, such a notice to obtain a trial date usually sends a clear message that someone is really interested in an end to the litigation, one way or the other!
However, in some matters, obtaining a trial date must often then be used more to obtain a case management order for the orderly progression of movement toward trial, rather than toward a voluntary or negotiated resolution. And we all know how difficult it is to actually be at trial on any first date designated by any Court.
And, obtaining a trial date can become much more costly and even risky, if you would rather be trying to put your primary efforts toward resolution than in preparation for a rapidly approaching trial date. i.e. If you have the (known) weaker case.
Accordingly, why not, either concurrent with your notice for trial or even first, notice your matter for mediation?
(Frankly, my personal choice, for both sides, would be to always have a trial date on your immediate horizon when you mediate. It is mandatory for any Plaintiff. And, for any Defendant really interested in voluntary resolution, it is the same. As long as too much time remains between any mediation conference and trial, one side or the other, consciously or not, will simply not have the requisite motivation to find their bottom lines.)
A little noticed (and even less-used) part of Florida’s “mandatory” mediation law, provides that any Florida court, “MUST, upon request of one party, refer to mediation any filed civil action for monetary damages…..” Florida Statutes, 44.102 (2) (a).
Although most of our Circuit courts are referring many matters to mediation quite timely (sometime too much so) and many parties jointly and voluntarily submit themselves to mediation even without a court-order, this knowledge of your ability to unilaterally “force” mediation is one of the weapons about which you must be aware and prepared to use if you are not achieving the movement in your case that you deem necessary. And, this choice usually begins with a case where your opposition is not cooperating on anything.
Why is mediation a superior tool for moving a dispute? Simple, mediation directly involves the parties.
Mediation, unlike a hearing, requires direct participation by the parties! That future required mediation conference participation then requires immediate contact by your opposing counsel with his client(s) for scheduling and then consultation. And, among those things, it requires your opponent counsel inform the client that the mediation process can result in immediate resolution without further litigation.
And, if there is one thing clients want, it is getting their litigation over! Now it is not only you asking for movement and finality, but your opponent’s client(s) will be inquiring about the same thing. And, will require your opponent to explain to their own client why NOT trying for a resolution now rather than at an expensive trial later makes any sense!
At the worst, Rule 1.700, Florida Rules of Procedure, allowing any party opposed to the referral to mediation to be heard, will allow you some insight upon their reasoning for not wanting mediation or their lack of preparation for it. Or, better, in the discussions that should take place before a disputed motion is heard, you will obtain some basis for the stagnation.
And, I am not suggesting that any attorney using this movement tactic should use it without some caution. If you are to have only one mediation, too early can be deadly. Thus, be prepared to withdraw your request/motion if the reasoning by your opposition is sound.
On the other hand, who says only one mediation is useful? Mediations, properly used, are far more efficient for discovery, for example, than much expensive mediation. And, many cases, particularly complex ones, simply should be mediated more than once.
Or perhaps your first mediation date will have to be re-scheduled? And, more than once if information is necessary to success. Or, even settled before mediation! (Three of the reasons such a suggestion will not be popular with mediators.)
But, don’t we schedule hearings to obtain movement? And, are these hearings (and deposition) dates also often rescheduled? Or do they not often lead to resolution, at least as to an issue or two?
Remember the old adage, “it is the squeaky wheel that gets the grease”? If you are not using your unilateral power to push for a mediation that fits with YOUR needs, you are missing out on one of the best, and perhaps, least expensive, weapons in your trial preparation arsenal.
Next time your case seems not to be moving, consider unilaterally requesting a mediation! Paraphrasing the Men’s Wearhouse ad, “You will like how (your case moves)”.
Good mediators really do care about assisting parties to resolution of their dispute. And like good trial attorneys, if any mediation is not successful, they will mentally go over and over the events of the failed mediation to try to identify what they believe went wrong.
However, likewise, observing mediation success equally allows any interested mediator to gain valuable insight, including strategies to help his/her next participants to their own success..
But, observing well-prepared, opposing participants, classically following those known steps that almost always lead to resolution, actually succeed in a dispute that most mediators (and even the participants) would have guessed, pre-mediation, did not have a chance for resolution, is very special indeed.
And, it quickly reaffirms that there is, and always will be, a highly predictable path to mediation success that, if followed, can lead anyone to success.
The larger question is why so many others seem to have such a difficult time in following what is such an easy path?
It was not luck. Unless luck includes having equally prepared lawyers and participants. It was simply the result of everyone’s effort, following the proper steps of pre-mediation and mediation effort, that led to the “perfect storm” of success.
And, if only I had a camera available and could have recorded this classic mediation effort, start to finish, it would have made a classic teaching aid for those others who want to learn to become their very best at their own mediation technique.
But, I had no camera and thus I can only try to convey, in my words, the classic pattern that unfolded in this one mediation success for others to consider.
This personal injury dispute was of highly disputed liability, usually a distinct negative for predicting mediation success. And, the damages, although significant, were not of the catastrophic nature. “Limited” damages, coupled with highly contested liability, usually is considered “strike two” for success because of the limited upside of any future verdict..
Further, the issues relating to legal responsibility were complex and technical, thus subject to great debate . And, this mediation was scheduled ”early” in the formal litigation process. Normally, two more added reasons for distinct pessimism for mediation success.
How then, did these parties, with these counsel, find the common ground for a complete resolution of such a predictable mediation failure?
As always, their ultimate success began with good, competent counsel on both sides, with good working relationships in this and with a history of prior encounters, and each respecting the work product and trial capability of each other (and each others’ firms.)
Both sides had evaluated, early, their respective likely future outcomes and had early exchanged, written assessments of their respective positions for their opponents to carefully consider.
The parties had exchanged an early demand and an early offer with explanations of their respective positions.
Both counsel had actively planned for the wisest use of mediation and mutually and jointly scheduled it at the wisest point in the litigation with sufficient but not excessive discovery. It was a case that any less discovery would have prevented any chance of mediation success. But, anything more might have equally lost the opportunity.
Both counsel exchanged early, timely pre-mediation assessments of the issues to each other, along with early and reasonable initial demands and offers to be considered prior to beginning mediation.
Both followed up their written offers with personal telephonic pre-mediation conferences explaining the reasoning of their respective positions and offers.
Both counsel consulted upon and carefully, jointly selected a mediator who they each felt, for some similar and some dissimilar reasons, would be most assistance to them, and to their clients, in finding a mutual resolution.
Both counsel provided efficient mediation summaries to their mediator well in advance of the mediation date and thereafter, actively conferenced, in confidence, pre-mediation, with the mediator with strengths and weaknesses revealed and discussed.
The mediator, in return and based upon those confidential disclosures, was able to recommend a few pertinent matters to each side, from a neutral and helpful viewpoint, to strengthen their mutual presentations to each other and to the opposing parties.
Both counsel arrived timely at the mediation conference with a fully prepared client who fully understood the significant difference of the mediation process from the trial process and with pre-determined respective goals.
Opening statements of each side were limited, precise, and pointed to the relatively few matters felt important to success at mediation versus success at trial. Both sides made multiple admissions of a number of their respective weaknesses to their opponent, while countering those weaknesses with their obvious strengths.
Neither side used their opening in any attempt at intimidation or to try to convince the other of any likely future largely adverse outcome. Both used this important process only to aid their opposition’s understanding of why there were two sides of the issues to be considered..
Time lines, selected photographs, and the active use of a likely future verdict form during opening statements, by both sides, emphasized each sides primary points, even though conflicted. Each side was able to understand, if not accept, the other side’s points.
With a limited time reserved so as to focus negotiation over rhetoric, each party stuck clearly to a negotiation pace recommended by the mediator to maximize each parties individual needs of contemplation, but remaining well within the time alloted.
The Plaintiff gained immediate credibility and the real interest of the Defendant by voluntarily offering an opening reduction from his already reasonable pre-mediation position which had been stated pre-mediation..
The Defendant, then immediately ”rewarded” the candor and “good faith” of the Plaintiff by an equally reasonable increase from their own pre-mediation position, setting the visible parameters, early, for mediation success.
These early moves by both parties totally removed any element of ‘fear of failure” that so often dooms difficult and early negotiations from the outset.
Keeping on a measured negotiation pace with the clock, and acknowledging the other side’s needs for information and candor, each side actively used their mediator to “test” several alternatives they considered, prior to each succeeding move to maximize as much good will as possible.
Each side was able to understand, even if not agree, to the disputed position of the other. Each side also appreciated the efforts of the other in accepting that there were differences of opinion, either of which might be ultimately accepted by a future trier-of-fact.
Little time was wasted questioning the negotiating style or position of the other on any given proposal or counter-proposal. Each side had pre-planned their desired end-goals and a rational path to that goal. Each side stayed on their own general goals, while modifying as necessary as determined by points and counterpoint made and accepted; at least for the purposes of compromise.
Each side carefully calculated, for themselves, the likely effect of each position offered to the other and the acceptability of each offer as viewed from the point of view of the receiver of the offer.
In the end, with the help of the mediator, mutual ground, for comparatively opposite, but similar business reasons, was found. And, with still enough time to fully consider the rather detailed and technical mediation settlement agreement necessary for both of the parties.
As you might suspect, the Plaintiff ultimately accepted slightly less than had been sought, while the Defendant agreed to a payment that was also slighty beyond their pre-mediation goals.
Neither party felt satisfied in falling short of their respective pre-mediation goals, but both were fully satisfied that the totality of the resolution was a far better alternative, for both, than any future trial.
And, after completion of their mediation settlement agreement fully documenting the administrative details necessary to fully close the dispute, their was a mutual air of success and relief that was palpable.
A perfect storm? Not at all. Simply good lawyers, actively planning for and using pre-mediation and mediation for the best interests of their clients, respecting the credibility and ability of each other, finding a mutually agreeable alternative for the benefit of both of their clients.
Success in mediation happens a lot. But it happens much more frequently for some than others. This case possibly demonstrates just a few reasons why. Maybe some of these steps to success should become yours?
Proposal For Settlement and Mediation:Part III-Mediating With An Unexpired Proposal For Settlement
This is the last of my three-part series regarding combining mediation strategy with the powerful litigation tool, the timely proposal for settlement: How to effectively mediate when with an unexpired proposal for settlement still pending as you begin mediation?
(Part I of this series concerns the proper use of the proposal for settlement in timing your mediation, as a set-up for your mediation negotiation and as an end-goal of any failed mediation. Part II addresses additional tactical suggestions for when and how to use at least one proposal for settlement in your overall strategy of negotiations, including in mediation.)
Despite your best planning (See, Part’s I & II), the timing of your proposal for settlement and your required mediation date may simply overlap. In other words, your proposal of settlement is still open to acceptance on, and even after, the date of your mediation.
If so, the old saying, “Caught between the Devil and the deep blue sea”, will quickly come to mind. And, you now must face difficult choices and the requirement of careful planning and action to preserve your proposal and mediation negotiation benefits.
(Note: I make the assumption for these suggestions, that continuance of your mediation is not an option; otherwise, your choice should be obvious.)
Initially, you face the immediate difficult choice of: 1) foregoing this valuable incentive to mediation or other resolution negotiation, i.e., by withdrawing this proposal, or, 2) actively entering mediation with your proposal still pending and/or even available for acceptance following mediation.
This initial choice may be harder or easier dependent upon the timing of this mediation, (early or ”final”) and whether any other prior proposals (as you know I strongly advocate) are already outstanding. Further, your choice is dependent upon whether your pending proposal was one presented in truly good faith, or one submitted tactically or knowing that it was unlikely to ever become a benefit, even if you are successful at trial..
And, an additional consideration, and a very important one, is whether your opposition has previously served a proposal upon your client.
Consider your options then presented:
Begin mediation with your proposal still pending?
When only one party has made a proposal for settlement, it implies that only one party has made the requisite evaluation of full trial value and thus make their present “reduced/increased” offer required for the intent of the procedure. When your opponent has not made a similar proposal, or worse, has made no negotiation effort, it must be presumed that the party who proposed their settlement is facing beginning mediation negotiation in a highly prejudiced negotiation position. After all, only one side has “negotiated” to a point that their offer is 25% less or 25% more than what they believe will be their position outcome at trial!.
Withdrawal of your still pending proposal for settlement?
Your withdrawal of your latest proposal can either precede mediation, take place literally as mediation is occurring or even after a failed mediation (assuming your timely compliance with the technical requirements of a withdrawal).
However, any withdrawal of your pending proposal means your negotiation return to exactly where you were before you made your present proposal. And, if you withdraw your proposal, you lose (and presumptively now cannot use) the precise negotiation pressure for which the tactic was intended. And, worse, if mediation is not successful, you (may) have lost the legal benefit you presumptively intended to gain.
And, do you really think your opposition will forget your “former” proposal position? Guess what the mediator is hearing, repetitively, in caucus with your opposition each time you propose a position higher (or lower) than your withdrawn proposal?.
Your opposition now knows, or should know, that for any proposal to have been made, that client must have given their permission based upon their position assumed at that time. And, that permission would have had to include the possibility that the opposition might choose to accept it in final conclusion of the dispute.
What will be your explanation, at mediation, as to why that pending or recently withdrawn position is not still (at least ultimately) acceptable? And, how can you retain any credibility so necessary for any mediation resolution without a reasonable explanation?
Still, I think your choice is clear. I suggest that any proposal for settlement , properly calculated and properly used for the use intended, is simply too great a “weapon” to ever abandon once delivered. And, of course, particularly, if the one pending is either your only proposal, or your “nearly best” one and there remains too little time to propose another should your mediation fail. .
Accordingly, I presently suggest you simply choose to mediate with your proposal still pending!
But, now, how?
How can you now move forward with any meaningful mediation negotiation?
Simple. Make and follow a plan!
First, understand your predicament. If you are the Plaintiff, and you have performed the requisite evaluation, presumptively your latest proposal is presently far less than what you believe is your likely outcome at trial. If you are the Defendant, your last offer of settlement is obviously ”much” higher than you had ever intended to propose.
However, if your opponent has not acted equally, you must now seek to level the playing field of mediation negotiation.
Next, determine where to begin your “initial” mediation negotiation. Your two choices: One, Ignore your (last) proposal for settlement, and “return”, for negotiation purposes, to begin your mediation negotiation at the full value of your trial outcome claim or defense. Or, two, begin your negotiation at your stated proposal for settlement and then prepare to ”hang tough”.
(Note, this second option is particularly difficult with any liquidated damage claim! After all, you have agreed by your proposal to accept less than you “know” you will obtain in damages if only your prevail. The only issue left then is winning. Meaningful negotiation usually requires both sides to have as many variable factors to negotiate as possible.)
Next, be prepared to patiently persevere. Either choice will, predictably, draw numerous and repeated, “wasted time” complaints and hard feelings from your opposition complaining about your choice.
“Returning to full value” for mediation negotiation will bring quick derision due to the above mentioned prior knowledge of your opponent of your pending proposal. “Wasting time” and ”lack of good faith” will be a constant refrain.
However, beginning without any room to negotiate, I believe, may be worse. You will immediately hear you “must move to even achieve another offer”. And ”hanging tough”, quickly becomes equally offensive to your opponent who predictably will want to insist on your making multiple incremental moves and similar to your opponent’s. This ”hanging tough” component, also may never allow negotiations to even get started.
By my observation, the “return to full value ” approach seems to waste about the same amount of time as allegedly beginning your negotiations at your “lowest/highest” last proposal.
Accordingly, presently, I suggest you choose the “return to full (or near full) value” approach to begin your mediation negotiation..
Next, pre-prepare your opposition for (either) elected approach. Do not wait until your opening statement, if any, to alert your opposition to where you intend to open your negotiation.
A letter to your opposition, hopefully with as much notice as possible (to be forwarded to the decision makers) suggesting that as your proposal has not (then) be accepted, and with no (reasonable) prior offers, that you will be beginning your mediation negotiations at a different figure than your pending proposal, but still at a discount from the full value expected at trial, is critical.
And, then state your “different figure” in your letter!
Next, plan carefully your negotiation strategy during mediation.
Initially, in your opening statement, remind your opponent(s) that your proposal has not been accepted and because it has not, and no counter offers have been made, it is important to return to your pre-proposal position to allow normal mediation negotiation..
(And, one good counter to the “howls” of unfairness of”starting over” is to point out that returning to your “full value” position is certainly no worse than the opposition having made no proposal prior to mediation!.)
Next, open your negotiations by your beginning mediation demand/initial offer for less/more than your figure stated in your pre-mediation ”letter” (But, still higher/lower than your pending proposal.)
This unexpected, unilateral move, usually will help dampen the opponent’s planned cry of “wasting time”.
Next, but only if necessary to getting negotiations back on track, announce your intention to withdraw your proposal for settlement. (But,really, do you want to get in a race to see which office can “mail” their withdrawal or acceptance earlier? (By the way, how do you time an “office-stamped” post mark?)
Next, now RAPIDLY negotiate with larger than normal increments.
Notice that your prior withdrawn position is then quickly re-instated but still allows you the requisite room for ”incremental matching” that is so generally the part of most incremental negotiations. But, move as rapidly as you can to re-instate something near your pending proposal.
Finally, and, hopefully early (or indeed it will be too late), make sure you propose to settle for at or less than your outstanding proposal.
(Note: If you ignore your proposal (presumptively only 75% of the true full value, if you are the plaintiff/Claimant or 125% of the value if you are the Defendant), at the end of the day, regardless of your mediation negotiation, your opponent will, unless you withdraw it before accepted, have the option of merely “accepting” your proposal. Accordingly, at the end of your mediation, therefore you simply must be at or below where your pre-mediation proposal would place you, should it have been accepted.)
Likely, using some or all of these steps, and assuming a good mediator to keep the process viable, you can eventually still arrive at your last proposal for settlement value, or likely even less/more.
In summary, if you get “caught” with a pending proposal for settlement as you begin mediation, leave the proposal pending, return to full value for your negotiations and work with your mediator to keep the parties engaged until the parties are returned to a similar position to where they would have been if both had been equally engaged in pre-mediation negotiations.
The real solution? Just don’t get “caught” with an unexpired proposal for settlement in mediation! See, Parts I and II!
You already know my feelings about the close kinship between your mediation success and your wise use of proposals for settlement. See, “Proposal For Settlement and Mediation; Part I: Negotiation and Timing Goals“, February 20, 2012.
(And, if you still have any doubt about the many effective uses that are presently legally permissible with a proper and timely proposal for settlement, you might want to review McGregor v. Molnar, et al.,, a recent case just reported February 17, 2012, out of the Second District Court of Appeals (I had no other better citation available at printing). It provides an excellent and timely review of the reason for the law and rule and the many and varied tactical uses for these procedures.)
I am convinced by repetitive observations of successful mediations that your use of the present proposal for settlement law and procedure, in combination with careful mediation planning, will dramatically increase your odds of avoiding the necessity of trial to resolve your dispute.
Accordingly, I offer some additional tactical suggestions for your consideration as Part II, of this three-part series, regarding combining mediation and the proposal for settlement to increase your mediation success.
First, both sides, plaintiff and defense, should use proposals for settlement, often and early.
At the worst, every proposal you make forces you to evaluate and consider (or re-consider) what your ”likely” outcome will be if your dispute must be tried on the facts and law you presently believe apply. At the best, it also forces your opposition to do the same!
For me, the most important initial consideration for any successful negotiation of any kind is for both sides to candidly estimate their likely future outcome by trial. See, “Rule One: Know Your Alternative(s) Should Mediation Be Unsuccessful.” December 19, 2010.
Further, statistically (and strangely?), the party who serves the first proposal for settlement in the typical dispute almost never has it accepted! One suggested reason for such inaction is that the opposition almost always assumes a better offer will be forthcoming in the future. ( Or, are they simply not prepared to make a valid recommendation to their clients about acceptance?)
And, of course, in matters in which the damages are liquidated, although obtaining your client’s agreement for a meaningful discount may seem difficult early in litigation. You can be reasonably certain, as your fees and cost increase, obtaining a similar discount will only become more difficult.
Regardless, what better opportunity to present a proposal as near to your bottom line as you will ever be able to propose in the future? Your clients fees and costs are at their lowest. And, of course, the earlier your proposal, the greater the benefit, your opposition paying your ongoing fees and costs, should you prevail under the procedure at trial.
However, even if your first proposal is later determined to require modification by your own analysis of facts and law that have changed, your first proposal will always remain as a valid concern for your opposition who, of course, also cannot predict the future.
Second, if you haven’t previously sent at least an initial letter outlining the damages (exposure) of your claim or defenses to your opponent (a recommended basic of the personal injury practice for establishing either reserves or claimant’s expectations), consider your use of an early proposal for settlement instead to gain their attention (and force them to set their reserves and/or review the defenses ).
If your internal argument is that you do not yet have a basis for such a proposal, ask yourself why not? What measurement did you use to accept the claim or defense? Or, to file suit or any defense? Whatever your answer, it is now time to evaluate your client’s likely future at trial.
And, I also can think of nothing lost by an early and objective appraisal of your claim(s) or your defense(s). However, I know, with certainty and years of experience, that much is lost if such an appraisal is delayed.
Third, if not already utilized, take the earliest possible initiative to notice your case for trial.
Then, always, always, accompany your trial date request with your proposal for settlement. Or, consider proposing a slightly better one than prior served (unless your best one was your first?)
The significance of this “double-whammy” of service of your trial notice and proposal for settlement concurrently is that not only are you telling your opposition that you are ready for trial, but you are also stating, clearly and with conviction, the present amount at which, if they move expeditiously, can immediately resolve the matter without trial!
When your opposition then reports to their respective client(s), as they now must, they have TWO messages to convey; “we are now scheduled for trial unless a settlement is reached and here is the cost of resolution, presently, before spending more”.
Alternatively, if your opposition (or the Court) has taken this tactical step before you, as soon as you get your opposition’s (or the Court’s) notice of a trial date , immediately present your own proposal for settlement to achieve the same double whammy effect.
And, yes, if yours is first, you will likely get your opposition’s proposal back. But what better way, again, to get parties actually thinking and talking about resolution! (And, by the way, “forcing” them to evaluate or re-evaluate their own position!) Again, they cannot realistically make any proposals without such an evaluation.
(I firmly believe that, except in rare disputes, a trial date is the only thing that will bring the emphasis and immediacy that is normally required for voluntary resolution for most litigations. Even good attorneys need a push now and then. And, clients need to know their day in court is finally scheduled.)
And, if you (or your opponent) have effectively told the court you are “ready for trial”, one requirement for requesting the trial date, presumptively by now you should have some idea of your most likely outcome at trial. If you do not, then catch up, and quickly!
Equally important, however, the costs of your litigation is now going to increase at a much faster rate than ever before. You are thus likely to be able to offer or accept the best settlement opportunity you will be able to offer or accept at any time in the future!
Fourth, at a “second minimum”, make sure you have your “close to best” proposal out just greater than sixty days prior to your (first) mediation. I say “close to best” because we all know that until we really “hear” the opponent at mediation, we (and certainly our clients) often over-evaluate our own position and denigrate the oppositions. Again, however, by now you simply must have had several assessments and re-assessments of your client’s position prospect if the matter must be tried and it is time to be “very close” or be wasting your time.
Fifth. Always try to leave yourself enough time to serve a “final proposal” should your “final” mediation fail.
Generically, if you have but one scheduling choice, and likely, only one mediation opportunity, a mediation about 60 days prior to your ”final” trial date is probably about as optimal as you can get. (But, note: Early mediations and multiple mediations have their very valuable uses.) See, also, “Timing The Scheduling Of Your Mediation“, January 28, 2012.
But, Sixth, regardless of any possible failure of the technicality of your proposal and how many days your mediation is scheduled before your trial period, ALWAYS follow-up any “final” failed mediation with your “really best” proposal.
As we previously discussed, if you are indeed at your final resolution mediation, there is really nothing to be gained by withholding your very best offer,and thus your best proposal. See, Proposal for Settlement and Mediation; Part I: Negotiation and Timing Goals“, Supra.
At worst, if there is insufficient time for your last, best proposal to take effect, your last proposal will not become effective. But, the odds are quite good that something will delay ANY trial and any delay may suddenly make YOUR last proposal a very powerful weapon. Particularly if your opponent did not bother!
But, if you are following my reasoning (and repetitive and objective evaluations necessary to use these suggestions), you already have at least one “pretty good one “ (or more) that could become valid if your early assessments were valid.
And, never under-estimate the number of cases that settle because someone suddenly decides that “last, best offer” really wasn’t so bad after all, even if it would not be “legally” effective.
Sometimes it is merely the forceful repetition of your offers and the sincerity and thought that is required for each that finally convinces your opposition to seek to end the dispute.
But, what is the repetitive and direct connection of each and all of these tactical efforts of proposals for settlement and mediation?
Simple. The more your evaluate your current fact and law position, the more confidence in your trial outcome evaluation you achieve. The more confident you are in your evaluation of what will likely occur at trial, the more confidence you have in your “bottom line” for voluntary resolution. And, the more confident you are on your bottom line for resolution, the more confident you will be in your negotiation strategies. And those who are confident in their negotiation almost always resolve their disputes at mediation.
I firmly believe there is a direct connection between the wise use of proposals for settlement and mediation (or even pre-mediation) success.
If you haven’t been using some of these tactics, try some or all of them. You might just be pleasantly surprised at your success at mediation, or at least resolution without the necessity for trial.
