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How To End Your Unsuccessful Mediation And Still Achieve Resolution

April 13, 2012

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 Your 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.

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