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Are You Making Your Own Mediation Success “Impossible”?

November 10, 2017

Are you (or your client) making your own mediation success impossible?

No mediator can cure “impossibles”.  If any party will not retreat from any final, but, “impossible” negotiation position, that party, at least that day, is literally making their own mediation success “impossible”.

And, frankly, nothing any mediator can say or do, that day, will avoid that mediation’s failure.

Further, that side is losing, that day, one of its most valuable litigation tools: early dispute resolution by compromise.

But, worst of all: these same repetitive  “impossibles”contribute to those who already wish to believe mediation is a waste of time.

What are “impossibles”?

Answer:  Any negotiating “offer”/position that no reasonable opponent can possibly accept.

Two of the most common include:  1) a claimant’s final ‘demand’/offer to settle that exceeds every probable ‘reasonable’ verdict in any dispute; (i.e., no party even considers any final negotiation position of an opponent that is anywhere near the alleged ultimate verdict!) . and 2) a defendant’s final financial ‘offer’ that does not permit an opponent’s acceptance due to the opponent’s simple mathematical inability to extinguish the known claimant’s debts after attorneys fees and costs are paid.

Both are all too common.  Many are usually based upon a failure to adequately and objectively understand the reasonable options of your opponent; such as over-estimating the strength of your own position; underestimating the opposing position or, under-estimating the non-negotiability of some unalterable element of your opponent’s position.

In personal injury mediation, an oft-expressed, but doomed, defense position is that their final position is based solely upon what “we always pay”; an irrelevant factor which too frequently is outdated at worst and at best totally unrelated to the facts and issues then pending.   A frequently heard final position of too many claimant’s is rooted in the current popularity of using “bad faith” as a weapon in negotiation;  i.e., “anything less than our final position will be in bad faith”.

Sadly, many such “impossible” postures by mediating parties are also, lately, too often based upon matters that have nothing to do with that particular dispute itself.

For example, if, (hopefully unconsciously) an attorney wants to take a matter for trial for any reason, personal or professional, other than the unfairness of the opponent’s final offer, that unrelated element injected into that negotiation can, and does, create an “impossibility” totally unrelated to that dispute.

Or, in a personal injury matter, if an insurer decides, for “policy” reasons, to generally resist voluntarily paying all medical expenses they believe are ‘patently excessive’, and allegedly thus “send a message” for the handling of other future matters by that counsel, again, that is, technically, totally unrelated to that dispute.   i.e., See, “Personal Injury Mediation:  Healthcare Billings are Forcing Unnecessary Trials.”  June 28, 2017.

Impossibles in any negotiation setting are certainly nothing new; they happen sometimes simply unknowingly by the parties or their counsel (and their Mediator?).  But, again, recently, they seem to be occurring much more frequently.  And, I believe they are also occurring too frequently to be solely accidental or coincidental.

And, I have seen this apparent cycle of “impossibles” before; but in slightly different settings.  See, “Personal Injury Mediation:  A Disturbing Trend or A New Flawed Tactic?”March 12, 2014, or  “Your Mediator:  These Days Best Considered A Farmer?”October 21, 2015.

Thus, the question is, whether, some  new generic  issue is again causing another policy change amongst trial counsel, plaintiff or defendant, or whether some insurance company’s (or companies’)  new tactical cycle is causing “mediation impossibles” to rear their ugly head again?

Reportedly, mediation settlements, including those happening later but directly because of the critical initial progress first begun at mediation, are still holding steady.  However, to many, mediators, judges and even litigators, it seems that far too many such recent settlements are now coming somewhat AFTER mediation rather than AT mediation.

Needless to say, any moneys and professional time needlessly expended by the parties or their counsel even one day after mediation are an immediate net loss to BOTH sides losing sight of some of  the most important true goals of any mediation:  saving time and money.

But, my fear is of something more basic:  the potential greater loss of confidence in mediation as the principle means of final dispute resolution.

Too many parties already approach their mediation either as an unwanted chore or a waste of time.  I know they are clearly wrong.  See, “Why Mediate When Mediation is a Waste of Time”, June 12, 2011.

But, I confess that each time I see one side or the other literally squander away their best opportunity for a complete settlement due to final position that is  clearly either a lack of either total preparedness or planning on one side or the other or both, I know that all sides to that mediation will now become added to those same ones who really start to believe that their mediation, that time, was a “waste of time”.

But, again, I respectfully suggest they are still wrong.  Even with that same mediation failure, at the best, that same case will still settle far earlier and at far less litigation cost than one not previously mediated.  And, at worst, the better attorneys on both sides will make it very, very painful for the opposing party to use the “Lotto” mentality to choose litigation over acceptance of a fair offer.  See, “Proposal for Settlement and Mediation:  Part II:  More Tactical Suggestions.”  February 28, 2012

Thus both sides are still better off for having mediated!

Mediation remains the most successful, most useful tool for litigating parties to avoid not only the uncertainties of a bench or jury decision, but also everyone’s best opportunity for a significant savings of time, money and stress upon the parties (and an increasingly burdened legal system).

However, the next time your own Mediator suggests to you that your latest, even more, your final, negotiation position is an “impossible” one, consider that it is really YOU (or your client?) who is dooming your own mediation success.

Dan, from Port Orange, Florida.

 

 

 

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