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Negotiation Tip: Consider a “quickie”

January 18, 2011

In personal injury cases, and particularly with experienced counsel , sometimes resolution can be found early in a cause with a properly timed,  “counsel-only mediation”.  In such sessions opposing counsel, through an experienced neutral, explore early resolution or, at least, greatly narrowing the usual gap between initial settlement positions of the parties  .  I call these “quickies”.

In fact, they are technically not mediations at all.  After all, the real parties in interest are not physically present and  authority is usually granted to all parties’ counsel in advance of this expedited process without the parties hearing directly from the opposition.

In reality, this expedited process simply uses the neutrality of the mediator and  a neutral and focused environment to guide quality and pointed negotiation amongst experienced attorneys representing clients granting them more than the usual control. 

It is clearly not useful  to all causes or to all parties or attorneys.  But, it should be considered as one more potential tool for parties where the facts and law are deemed sufficiently and equally known and all sides are interested in avoiding unnecessary litigation costs.

This is also an echo to an earlier time in which experienced counsel were, and were allowed to be, more objective  toward their clients and their clients’ causes.  And, the absence of the parties normally present in mediation actually allow experienced counsel the luxury of more objectivity.  

This truncated process’ best use is to accomplish movement of the parties initially polarized positions early enough in the litigation to allow a better opportunity for the opponents to judge the merits of expending more efforts toward settlement  or realizing that more litigation may still be required.

The “quickie’s” primary advantage is the substantial savings in time and cost compared to the more formal full mediation requiring attendance of the actual parties and other parties in interest. 

Just as mediation has revolutionized how negotiations were conducted in earlier times, “quickies” could change how mediations are approached in the future.

Prior to mediation and the subsequent present practice of little negotiation until formal mediation conference, it was commonplace for attorneys to be the constant conduit of the exchange of information and active negotiation as  litigation progressed.  This allowed the parties the ability to continually gauge the wisdom of  continuing litigation or exploring resolution as the matter progressed through discovery.

The “quickie” also recognizes that legal counsel often are the early, if not the final, guide to many mediating parties in their ultimate decision of resolution.  Then, why not, in proper matters, allow the same attorneys to make what progress that can quickly be made initially narrowing the parameters of dispute?  How much time is often wasted early in formal mediations getting to the “real” dispute?

“Quickies” are not for all.  Many parties still see mediation as a useful tool to gain some real or imagined advantage during the mediation conference itself.  Client control issues may also prohibit use of this tool.  And a neutral and focused venue is likely mandatory for any reasonable efficiency of the process.

And they certainly have other limitations, including a higher degree of potential problems with buyers or seller’s remorse ,simply because technically mediation agreements, until signed by all of the parties, are not enforceable under the present rules of procedure.

But, in the present climate of rapidly increasing costs of litigation and resolution opportunities often lost solely to excessive litigation expense, a “quickie” may be the next tool you will want to consider from your negotiation toolbox.

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