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How to Achieve Mediation Resolution When Opposing Counsel Actively Resists Settlement

April 29, 2015

It is relatively easy to resolve any dispute in mediation if your opposition’s counsel also desires settlement. Resolution can seem impossible, however, when they do not.

Although, technically, it is the party, on both sides, who is supposed to be making any decision of proffered settlement, more times than not, it is the party’s attorney who can and often does create real obstacles to offers and even mediation resolution.

However, it need not to be such an impediment. With some simple changes in your own (and your client’s) “business as usual” attitudes and “standard” negotiation procedures, you can, if you wish, overcome this seemingly impossible obstacle.

And, with planning and thought, you can unilaterally achieve settlement, even over active and aggressive interference of opposing counsel.

Accordingly, rather than quickly give up in frustration when confronting obstreperous counsel, simply  1)understanding the reasoning for their counsel’s opposition and  2) being prepared to alter you own “usual” tactics and negotiation methods, can allow prepared lawyers the ability to aid their clients overcome any obstructionist tactics.

Here is how;

Be Prepared:  A few basics you simply must achieve prior to that kind of mediation;  1)  “Know’ the most your defendant client is willing to pay/give for resolution or your claimant-plaintiff client will accept in resolution.  See, Rule One: Know Your Alternative(s) Should Mediation Be Unsuccessful.  December 19, 21010,  2)  Carefully time your mediation, including to maximize your strategic use of a Proposal For Settlement.  See, Timing the Scheduling of Your Mediation.  January 28, 2012,  and   3)  Most importantly, be (and have your client) mentally willing to negotiate this matter unlike any other of your “usual”  or standard mediation procedures and tactics.

For the Defense:

Step One: Understand your Claimant-Plaintiff attorney’s opposition.   Here are some common causes:

1)  The claimant’s attorney would love to present this case to a jury.  i. e., This case is  highly contested liability, but with the upside of significant damages, if won.  Claimant/Plaintiff attorneys are usually left with only their worst cases to try, i.e., little defense upside risk: tough liability, significant damage or causation issues and low, total ultimate damages.  For a change, this is a case your opposing counsel chooses to try.  2)  The claimant’s attorney does not wish to be pressured by a truly “fair” proposal of settlement made to his client, if the case is tried.  i.e. This case is clear or even admitted liability and any “fair” proposal for settlement presents an unwelcome tough “winning, but still losing” scenario for his client should they choose to risk trial.  3)  The claimant’s attorney simply wishes to try ANY case.  “Trial lawyers” need to try some matters!  Trying, well, any case, is valuable to the attorney, even if, occasionally that specific case might be”lost” to a specific client.

Solution: Force ONLY the claimant-client of your opposing counsel to decide about ANY of your offers.  Further, do not let the opposing counsel block continuing negotiation by their negotiation tactics.

Technique:  Offer a fair position, quickly and aggressively.   Do not treat/negotiate this case, “as usual”.

First, advance-warn your mediator that you do not want the opposing side to leave until YOU have made your last offer.  In summary, do not let your usual negotiation strategies get leveraged back against you by your opposing counsel to prevent your final best offer being well-considered. (It is not easy, but an informed and involved mediator can help you overcome obstacles if you use and inform them properly.)

Next, Ignore the amount of the opening “demand” of the claimant’s attorney.  Everyone knows the asking price is always inflated, including the claimant.  And, no opposing position should /will  alter what you have planned to present as a final fair offer.

Next, drop your “usual” initial low-ball, offer to “send-a message”.  And, rather, use advance preparation and aggressive “mediator math*” to make sure your first offer, leaves a net actual offer that only the client can reject!  (*If you are unfamiliar with this term ask your mediator!)

Then, make every other offer actually match your words that you “came to resolve”. i.e. Make early, substantial offers to quickly make the claimant-client begin to mentally spend their net result from your proposed settlement.

Next, do not succumb to your usual negotiation clichés,  i.e.,  “we don’t bid against ourselves” stance.   As warned, this one is NOT USUAL.  In short, be prepared to ignore the alleged “insult” of no response, until YOU have made your best offer!

Finally, grit your teeth (you are always winning until you lose) and keep moving to YOUR final offer, regardless of what obstacles your opposition sends your way.

If necessary, make your final offer to your opposing client even as they are entering their vehicles to leave!  (Of course, to be followed that day or the next by your equally valid Proposal for Settlement.  See, Proposal for Settlement and Mediation:  Part I:  Negotiation and Timing Goals, February 20, 2012

For the Claimant/Plaintiff:

Step One: Understand your Defense attorney’s opposition.  Here are a few common causes.

1)  Defense counsel has been embarrassed by your stifling their efforts to obtain the information they are required, by their clients, to obtain prior to mediation.  By making them look bad for their clients, they have little reason, now, to help you.  2)  This is a case in which the defense does not wish to receive a proposal for settlement. They wish to take their risk of trial, but without fear of paying the penalty of a fair proposal for settlement.  3)  This is a case defense counsel really wishes to try.  Claimant’s present “demand” is so far from reality that no matter what a jury may do, any reasonable outcome at trial, frankly, will be seen as a “win” by their client.  A failed mediation locks the win in place.

Solution:  Work around the opposing counsel.  inform the client, directly, if necessary.  Force only the defendant-client or its insurer to reject a fair, final settlement “demand/offer”.  Ignore any negotiation tactic by counsel designed to deter your efforts at resolution.

Technique:  First:  Prepare your opposing client!  Give generous, complete (even excessive) information, early and often, including  courtesy packages “to be forwarded” directly to the opposing party and/or insurer.  Overwhelm your opposition’s client, pre-mediation,  even before asked.

Next, pre-inform you mediator well in advance that you do not intend to leave mediation without placing your best “demand-offer” at the feet of the opposing client, regardless of the opposing side’s tactics or responses.

At mediation,  negotiate “aggressively, substantively and quickly”.

For example, make your ‘initial” demand/offer to settle not only fair, but downright reasonable in light of the facts of your dispute and the “real’ likely outcome at any future trial. (Trust me, your opposition knows how to evaluate risk!; so make it risky for them!)

Follow every rejection (with or without counter-offers), even silence, with quick, and significant, down-ward repetitive offers, to finally reach that point that is simply too “fair’ to ignore. And, move quickly, they are packing their bags.

Finally, be prepared, even as your opposition is walking out the door, to present your “bottom line”.  They may claim to be uninterested, but later, some one in their chain of command will be examining your final position.

And, of course, then follow, that day or the immediate next, with your own proposal for settlement for the same last fair offer. (See above.)

Easy, huh?

No, of course not.  Not for either side.  Many attorneys, on both sides, actively use interference, including for the protection of their clients.  And, frankly, only the most prepared, informed and motivated counsel (with or without their client’s prodding), Plaintiff or Defendant, will heed this advice.

The purpose of this blog-article is to simply suggest that you don’t HAVE to let your opposing counsel stymie your resolution efforts.  YOU can control at least your side of the proffer and your final position, regardless of any cooperation by your opponent.

But, it does require preparation and a change of attitude and negotiation tactics.

There is a distinct difference between the tactics of trial and the tactics of resolution.  Better lawyers know and use both for the benefit of their clients.

Dan, from Chiefland, Florida.

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