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Mediation Negotiation: The Defense’s Opening Offer (assuming resolution is your goal)

September 6, 2015

With the Defense’s more-frequent attendance at mediation and their decidedly more aggressive use of mediation as a valuable litigation tactic, the Defense “side” is, frankly, usually simply “better” at their mediation negotiation technique than most Plaintiff’s representatives.

Among other Defense advantages, because of their relatively uniform “homework” the Defense always has a relatively firm idea of where they intend to begin their offers, where they will likely end their offers and the manner and pace of their negotiation in between as planned to achieve a particular goal at THAT* mediation.

But, as it still takes both sides to resolve a matter, respectfully, in my opinion, to improve their mediation resolution successes, the Defense’s usual negotiation technique at mediation must consider change in those matters in which they wish resolution at THAT* mediation.

(*Note:  Many Plaintiff’s representatives still do not grasp the common Defense technique to USE mediation as simply another valuable tool of discovery and for advance planning for some other future resolution attempt, including another mediation.  However, this article is directed to those Defendants who intend to use their mediation for a good-faith effort at THAT resolution.)

Here is one easy way for the Defense to consider a change:

Step One:  Consider using alternative practices for the Defense’s initial offer in response to the Plaintiff’s initial demand/offer.

Many have written on the necessity of a well-planned “opening demand/offer” for any Plaintiff in any negotiation, including mediation. See, “Mediation Tip: Putting the For Sale Price on Your Horse”, January 31, 2011; “Mediation Negotiation Technique: Create a Negotiation Plan”, October 16, 2013.

However, I strongly suggest that this same “opening offer” by any Defendant has as much to do with the final success of the total negotiation as the Plaintiff’s opening “demand”.

Too frequently, because Defense representatives are simply jaded by the “usual/predictable” negotiation techniques of too many Plaintiffs, including their often excessive initial position/”demand”, that their own responsive negotiation technique becomes also all too common and also too predictable.

Plaintiff “sides”, however, often become just as jaded to predictable Defense mediation technique.  And, particularly if they routinely deal with similar Defendants or Defendant’s representatives.   And REALLY particularly if there is never any change to the “standard” routine of that representative!

Solution?  Both sides must change their “routine”!  Become unpredictable; Tailor your approach to each mediation.

The most common (read: predictable) Defense opening offer (even with a fair opening demand) is the “low ball”; an offer so low as to be known not to ever be acceptable!

While such an offer may be occasionally useful in those cases in which the Plaintiff’s initial demand is equally absurdly high, it is equally offensive to the Plaintiff’s representatives for its predictability of being a known unacceptable!  It may even be the REASON for the absurdly high demand in the first place, anticipating the absurdly low initial offer.

Worse, it presents the usual lay-Plaintiff with their critical first impression of the Defendant as “UNREASONABLE”.

It must always be remembered that it is the client, the lay-Plaintiff, who must ultimately decide if the final offer made is reasonable.  That lay-Plaintiff may never have been involved with any prior negotiation.  Beginning with something so unreasonable as to be insulting is NOT a good way to gain the interest of the opposition in TRYING to settle.

Alternatives:

Suggestion #1:  Make a really reasonable offer FIRST!  Make an offer that at least COULD be accepted, even if, obviously, it will not be your best offer.

Simple “mediator math” should tell any defendant the point at which any lay-plaintiff will actually be in receipt of any net dollars.  What will be the reception to an offer that does not permit some recovery to the lay-Plaintiff?

I know, I know.  “A higher than they expect initial offer will increase their (present) end-expectations.”  “They need to know we are prepared to try the case.” “Such an initial offer does not leave me anywhere to go (if they do not negotiate equally fairly?).” Etc., Etc.

Observation:  If you really know where you ultimately and finally intend to go, within reason, why do you care about their expectations?  Are you really going to pay more than you believe is appropriate to the case?

And, should the return response NOT be “fair” in return, you can always return to an equally ridiculous response as you next offer to send the same messages thought to have been missed by your initial generous attempt.

But, if I suspect, a fair offer will be met by an equally fair return offer, you are now well on the way to an actual resolution and at a far faster pace.

Suggestion #2:  Open with a bracket of your expected negotiation range.

Nothing sets the tone of YOUR expectations better than simply telling the opposition of your intended range of acceptable negotiation.

Better than a low-ball offer, suggesting bracket of “fair” negotiation signals the range of your intent WITHOUT  your making the initial offer that simply could never be accepted.  And, implicit in the offer are numbers that sound higher without ever being within your intention to offer.

Best of all, a bracket offer actually offers nothing, if not accepted! And most often will be responded to by an alternative bracket proposed in return.  But, even if not, regardless of the Plaintiff’s response, your message of your conception of fairness has already been sent!

And, even though any return bracket will likely be higher, the total information gained is such a valuable exchange, it saves hours to the usual low ball incremental offers/response-created brackets usually experienced.

However, many times, if the proposed bracket is really fair, it just might be accepted.    If so, think of the time thus gained for the more critical final moves of negotiation.

These are only two “easy” alternative initial offers for the Defense to consider. ( A third tool?, See, “Mediation Negotiation:  Plan a Soft Landing”, November 20, 2013.)

However, if you are a “Defense” representative, at the least consider changing your “business as usual”  or routine approach in your next mediation and see what such a really “small” change in your technique can do to increase your overall success in mediation.

It will work!   Repeatedly, I have seen a minimal technique change such as simply a more generous opening offer literally guarantee ultimate mediation success.

But success requires the parties first change their old attitudes and beliefs toward each other and their conception of the “usual” processes of mediation.  And, maybe, ask your Mediator for their suggestions?

Give it a try!

Dan, from Vero Beach, Florida.

Proposal For Settlement and Mediation: Part IV: Mediating with an Expired Proposal for Settlement

July 24, 2015

Successful negotiation, including where to begin your mediation negotiation, always requires advance planning, including close consideration for the history, if any, of all prior negotiation* (see below).

However, negotiating with a known special circumstance requires special advance planning on how to begin.  One example of such a special circumstance:  Policy limits in  insurance litigation.  See, “Negotiating ‘Policy Limits’ Matters in Personal Injury Mediation”, June 4, 2015.

Another very similar example of a special circumstance for which to also consider and pre-plan for where (and why) to begin your initial round of negotiation:  An expired Proposal for Settlement.

You know my fondness of the value of the proposal for settlement tool (also referred to in Florida, previously, and in other jurisdictions as an offer of judgment) for litigators and negotiators, of both sides, and particularly in the context of mediation success.  See, “Proposal for Settlement and Mediation: Part I: Negotiation and Timing Goals”, February 20, 2012; “Part II: More Tactical Suggestions”, February 28, 2012; “Part III:  Mediating with an Unexpired Proposal For Settlement”, March 5, 2012.

The reality of your prior tactical use of this tool, and then its expiration, before mediation, is that you, practically, now have only three options of how to begin at mediation:

Begin your negotiations at the lowest of:  1)  your true likely net-verdict outcome if your mediation fails, or  2) at 125% of your last monetary proposal, assuming substantial time and some tangible and excusable monetary change since the proposal or, 3) at your last monetary proposal, if it only recently expired.

Here is why.  Unless you honestly believe your opposition is not paying as much attention as you, your worthy opponent will have every right to “know” that before you sent your client’s lowest proposal of settlement to them, you clearly had your client’s permission, that if accepted, that proposal would have totally resolved the dispute at that time.

Therefore, why would anyone pay more/accept less than an amount previously “proven” would totally resolve the case?

Only if a significant, economic change has occurred since the proposal!

Examples of potentially valid reasons for change, “since that time”, can include substantial additional out-of-pocket costs, significant additional attorneys fees (if that kind of case), additional damage, i.e., additional medical care (if that kind of case), substantial change in admissible evidence, a critical and unexpected legal ruling by the Court, or even the unexpected collapse of an opponent’s key expert.

But, then again, how many were already considered in your expired proposal for settlement?

Notice we are talking PRACTICAL here.

Accordingly, unless you can clearly objectively prove a valid reason, since that time, to increase (or decrease) your opening position at mediation from your lowest proposal for settlement, you are simply wasting time.

Feel free to begin your own negotiations any place you wish.  After all it is your case, your client and your mediator is being paid by the hour.

But here are the facts.

Probably 90% of most proposals for settlement are relatively late in the litigation process (even post-mediation) for any number of valid reasons.  Accordingly,  since most “valid change” must be significant and over time, such late proposals will almost always require beginning additional negotiations at choice “number 3”.

And, when in doubt, choice “number three” will almost always be a safe start for any number of complex reasons, including this discussion.

However, if ANY prior proposal for settlement did not first involve a fair evaluation of the ultimate verdict obtainable, than “choice 1” will always be your best choice of beginning any negotiation.  Every attorney must assume that their opponent attorney also “knows”, with some bias, this likely ultimate verdict outcome. I test this mutual evaluation premise at every mediation.  And, the more experienced the opposition, the more credibility your opposition’s opinion deserves.

But, what about truly “early” proposals for settlement?  Many excellent lawyers use a truly “early” proposal for settlement for any number of valid reasons.  Including some I have suggested before.

And, if early proposals for settlement did include a reasonable “probable verdict test” AND the mandatory “discount” of that fair value, by the 75% required to utilize the intent of Florida’s proposal for settlement rules, than choice “number 2” can be fairly made.  Beginning at 125% (+ or -) of the early, and now expired, proposal, essentially merely begins the negotiations only at the original “verdict value” of the case.

Discounts that then must follow in incremental negotiation then reflect only the potential for error in the prediction and the practicalities of time, money and uncertainty that drive all negotiation.

And, with these truly early proposals, with the expiration of time, the opponent who did NOT accept the truly early proposal, is already “proven” the bargain, at the passed-up original verdict value, by the time and monies BOTH sides have had to expend for their now full knowledge of the bargain passed.

(Note:  It is a “mistake”, however, to try to ADD/SUBTRACT these expended (“wasted”?) monies to/from the presumed future verdict beginning position;  the probable verdict start is already your likely best outcome, and, as such, the opposing party would be justified in feeling punished for you to ask for reimbursement simply for their fair legal discovery.)

That is not to say, however, that AFTER beginning the complete negotiation process, that these additional factors cannot play a role in the amount of concession that one or both sides must surrender as the negotiation process moves, hopefully, to a successful conclusion.  One of the benefits of both sides BEGINNING fairly, is that the incremental moves simply can be much smaller, and quicker, as both sides move to that firm point in which one side or the other believes their TOTAL upside at trial is superior to the final position proffered by their opponent.

As before, I believe the intent of fair usage of the proposal for settlement is to narrow the range of negotiation.  In so doing, it also greatly enhances your chance of  a complete resolution.  Even if your proposal (and resolution) comes only AFTER mediation (but because of your mediation effort).

But, it is how you BEGIN mediation that often determines how your mediation ends.

Thus, I offer these humble suggestions on how to begin your mediation negotiations in the special circumstance of a previously served, but now expired, proposal for settlement under Florida law.

Try it.  I think you will find it pays to know how to begin your mediation.

You gain credibility.  And, at the least, you will save yourself time, money and unnecessary mediation stress.

Dan, from Ft. Benning, Georgia and Houlton, Maine.

*Note:  ALL negotiation.  Formal or informal.  (And, verbal, always included!)  (It is a good habit, following every “off the record” conversation with your opponent, to make a written note of any “dollars” mentioned by either side in any context;  trust me, your opponent is recording it, and he/she will have long-ago forwarded your informal discussion on to their client.)

Negotiating “Policy Limits” Matters in Personal Injury Mediation

June 4, 2015

Negotiation is never easy.  And, mediation always brings every negotiation technique into very, very sharp focus.

In every arms-length negotiation, the ultimate measuring stick for where negotiations begin, trend and end are the same: a practical time and money comparison of resolution now with the most likely outcome at a future trial.  See, “Rule One:  Know Your Alternative(s) Should Mediation Be Unsuccessful”, December 19, 2010

However, in  a personal injury claim wherein the claimant reasonably believes their ultimate judge/jury verdict will “always” be of greater economic value than the total available limits of any defendant’s insurance, the entire methodology of usual negotiation changes.

Knowing this difference from “normal and usual’ negotiation, particularly at mediation, at the least, should reduce the angst for one side or the other, or both.

Particularly if your well-chosen mediator assists both sides in understanding the necessary differences.

Frankly, there are really only two paths for any Claimant (or their attorney) to negotiate any personal injury claim:  1)  using the normal ultimate verdict value method or 2) using known policy limits as a guideline, start to finish* (See below).

Any claimant’s counsel’s choice, however, will be dictated by the circumstances of their claim.

Choice 1:  If the defendant-insured is reasonably subject to collection of a judgment  “well” in excess of the policy limits (and the rigors, uncertainties and expense of  trial are of no issue) than feel free to ignore the foreseeable protests (and threats) of the defendant’s insurance representative (and the insurance-provided defense counsel) and their assertions of the impossibility of any negotiation in excess of the demonstrated policy limits and negotiate your case using the usual, ultimate reasonable verdict value method.  Presumptively, any limitation of any defendant’s insurance coverage in these circumstances is the problem ONLY for the defendant!

Choice 2:  If the defendant-insured is NOT reasonably subject to collection of any excess judgment, save everyone (including your Mediator) some time and angst and open your claimant-demand/offer negotiations AT the known policy limits**.  Your only real change in technique is the immediate reduction in the size and numbers of your incremental negotiations to your end-point.  But, then also make sure your Mediator expressly conveys this “choice” of practical negotiation to the defendant solely as a generous (and reasonable) concession of reality, not because of the merit of the claim.

Those are the two clear, easy and obvious choices.   However, most matters are not so clear:

1)   What if the value of the ultimate judgment is not truly “well-in-excess” (i.e. maybe just a bit over)?  or,

2)  What if the future alleged excess judgment is not really a “sure thing” at all?   or,

3)  What if the future judgment, although unquestionably significantly over the known policy limits if won,  is (objectively) highly questionable as to a successful outcome?***

My advice:  Go to Choice 2.  Insurers, remember, are professional risk-takers (that is why they are in the business); no Claimant is.  Don’t waste (much***) time attempting to negotiate over the policy limits.

***Note:  In some circumstances, beginning one of these kinds of mediation with Choice 1,  the traditional ultimate verdict value method, can be of some initial usefulness to express future upside risk to the defendant.  However, after making the point of the “possible’ future value, quickly switching to the reality of policy limits negotiations, likely still must be ultimately elected (by using your mediator as your guide) to avoid wasting valuable resolution opportunities.

In moving, realistically and early, to where your only real opportunity of voluntary resolution exists is the immediate show of the credibility any claimant will ultimately need to succeed.

And, how to end the negotiation with a policy limits issue?

*Sadly, your ending/final offer to resolve such policy limit matters will also be dictated only by the facts and law of each case.

Some claimants counsel will steadfastly demand and finally obtain the full policy limits.  In grossly under-insured matters, this probably is fair to all.  Predictably, however, such a maximum resolution will come only with much time, patience, angst and perseverance.  And, pay-back?

Most that are settled, however, will be those whose counsel advocate and permit a discount off of the policy limits as determined by the ultimate judgment value and risks of trial.  And, frankly, the decision made by client or counsel that obtaining any more will simply “cost” equally more.

Again, this is where your Mediator can assist all in fairly and objectively considering the respective opposition’s points.  See, “A Role of the Mediator?: Assisting Participants to be Ready to Mediate”,  July 23, 2100.

Those that are not settled**, at the least, by this choice of  the policy limits negotiation method, will have created/completed the first critical step for any extra-contractual dollars then sought post-verdict!

Personally, I believe, in the end, everyone gains by allowing a “practical” discount upon the policy limits.  And, particularly where the mediation is early and much remains to be done.  (When ALL policy limit cases SHOULD be mediated.  See, “Timing the Scheduling of Your Mediation”, January 28, 2012)

But, what would you expect?  I am a mediator.  I believe in reasonable, prepared and informed compromise.  I also believe that every voluntary resolution requires both sides to gain more from resolution than with trial.

This mediation negotiation suggestion will not be acceptable to all.  Once again, it is intended to simply alert those of you who wish to be fully prepared for your next policy limits mediation by contemplating these clear and limited choices well in advance.

Let me know if it helps.

Dan, from Tavares, Florida.

 

 

 

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.

Your All-Important Pre-Mediation Summary: Seven Other Valuable Uses!

March 23, 2015

Another one of Nature’s Great Mysteries?  Why do so many lawyers, plaintiff and defense, still fail to prepare and wisely use one of their most valuable and necessary tools for their client’s (and their) mediation success:  A Pre-mediation Summary?

(Many attorneys still routinely ignore this practice, particularly with no Court Order.  See, Would a Pre-Mediation Case Management Order Improve Success At Mediation,  February 2, 2011)

Whether Court-ordered for the mediator or simply an essential for greater success in mediation, you already know my view of the significant value of any simple pre-mediation summary for, among other reasons, educating your mediator.  See,  Mediation Summaries: Why Bother?,  July 11, 2013.

Rarely do I re-visit educational blog subjects previously discussed.  I do reserve that right, however, to repeat, if not embellish any important subject, particularly in areas of good mediation practice repeatedly proven to have direct financial benefit to success in mediation.

However, my intent with this review is not to try to answer this puzzling question, but rather to offer additional worth to the effort of creating the Mediator’s Summary in hopes of encouraging more widespread acceptance of its real total value.

I will assert it once again:  Those who prepare and provide even the most basic mediation summary to their mediator continue to enjoy a disproportional mediation success as opposed to those who do not!

Clearly, your mediator finds it invaluable.  And, that, by itself is reason enough.

But, once this simple document is already in your word-processor draft existence, there are many, many other equally valuable uses for your summary, or some version of it,  beyond that simply for use in educating your mediator.

These “other” uses are literally simple alternative drafts of the same summary, require little additional effort, have great value and are even more reason for your efforts to always produce ANY mediation summary possible.

Once you have a semblance of a mediation summary in hand, here are at least seven more valuable uses of reasons for your same work-product for you to consider:

First, the mere timely construction of your summary “requires” you (or someone) to organize and prepare you for your mediation.  And, your know my feelings on preparation.  See,  Become One of the Top Ten Per Cent of All Mediating Attorneys,   April 11, 2013

Even if your paralegal constructs your draft of the summary, the mere fact it is constructed for your review forces you to thus review the product and the file and thus indirectly causes you to be far more organized for your mediation than having none prepared.

Second, by repetitive use of a form or formula type summary, i.e., inclusive of all of the “normal” things of any case summary, your review of your draft summary compared to your formula or model summary, will immediately alert you (or even your staff) to those matters missing or in need of attention well BEFORE mediation.

The basics of any good mediation summary, as you already know, should include a short factual outline of the relevant facts for assignment of responsibility, the applicable law of the case, a summary of the legal issues in dispute for judge or jury decision, a review of  all legal damages sought (if injures are an issue, a separate factual outline of the basis of recoverable damages), and a review of all prior negotiation, including all offers and proposals for settlement exchanged.

Third, a simple advance copy to your client provides not only valuable contact with your client, but informs THEM of your preparedness on their behalf.  (Just remember to edit/omit any extreme advocacy, including your “evaluation” of the claim to the defense.  This subject is better communicated, in person, in your pre-mediation conference with appropriate explanation of the negotiation process!)

Further, a pre-mediation summary can serve as both an outline for your client’s preparation as well as a “request to update” to allow your client to assist you by encouraging them to update any matters not as current as you would like, but still well prior to mediation.

Fourth another copy, inclusive of advocacy, can now be used, perhaps with some selective didactic or expanding to educate your opposition counsel (with a courtesy copy to be forwarded to THEIR client).  Most attorneys know what their opponents need to most effectively participate in mediation.

No client (and thus no lawyer) likes surprises in mediation.  Education, in advance, pays the most mediation dividends.

(One of the most frequent caucus complaints heard by mediators include: “We didn’t know that.”,   “We have been asking for that information all along.”,  or  “I wish they had told us that before mediation.”)

However, one of the most important collateral benefit to your opposition receiving your summary ( or at least acknowledged by your mediator) is that its mere existence overtly and loudly “signals” your readiness for all issues at mediation (and thus, trial, should mediation fail).

Fifth, this same “educational letter” can be used to update/refresh your intended demand to begin your mediation.

The best negotiations can become stale.  Verbal  communications get muddled.  Reminding your opposition (and your client?) of the past can both avoid re-treading old ground and show the path to success.  Further, taking any concessionary approach to your last known position, prior to formal hearing, can often also raise your level of success by demonstrating your reasonableness.

Sixth, a file copy of your summary become a quick and handy checklist-outline for your opening statement (if one is advisable).

More than once, I have seen harried attorneys using their mediation summary as a quick outline for the opening statement.  (Weren’t they happy they had one!).  Alternatively, should your mediator suggest you might want to waive your opening statement for valid reasons, your opening statement is already sitting in their hands!

Seventh, this same summary can also serve as a checklist of your requirements for a settlement agreement, once successful.  See, Mediation Settlement Agreements:  What You Should Know,  January 18, 2012

Too often excessive time is required, after a tentative resolution agreement. in simply finding the mutual agreeable wording for formalizing the agreement achieved.  Bringing your proposed draft agreement is always the best practice, but having an outline of your goals, already in your Summary, can be an equal time saver.

To prevent this discussion from becoming too long, I will stop with just these SEVEN additional uses of your critical “mediator summary”.  However, I’ll bet each of you have or can add a few more.

Every prepared lawyer in mediation will utilize as many benefits possible of a structured pre-mediation summary for their mediator.

However, once any draft is prepared for  its primary use for/with your mediator, as demonstrated, there are multiple “other” ways to use this same work-product, with simple modifications, for the maximum total mediation benefit of your client.

Solve just one of the worlds mysteries!;  Prepare and wisely use your “mediator’s”  mediation summary in many, many other positive ways to simply, but substantially and immediately increase yours and your client’s success in mediation.

(And, please feel free to leave a comment on YOUR suggested “other” uses for your mediation summary.)

Dan, from Sebring, Florida.

 

Florida’s Revised Arbitration Code: Better Review Today!

February 27, 2015

In Florida, with six active appellate courts creating case-law and a legislature annually generating new statutory law, it is the wise lawyer who strives to keep up with changes in the law.

Recently, in reviewing an arbitration agreement to consider accepting service as an Arbitrator, I was struck by some language I had not seen before.  I alerted the requesting attorney for his greater caution, but as it is common to have almost no routine wording (or structure) in many such critical contractual agreements’ sub-sections, I merely personally filed it away to consider the “odd” language in-depth another day.

That “another day” came this  week, when, much to my surprise, I  confronted  my first actual close review of the “Revised Florida Arbitration Code”!  See, Chapter 682, FL. Statues (2014)

Embarrassingly, and under my radar (and, I now am involved in far more arbitration than I was as only a civil litigator), after nearly 50 years of the older Code version, in 2013, the Florida Legislature passed significant (dramatic) statutory changes to the law of Arbitration in Florida.

What a shock!

If you do any work that involves any Arbitration, and if you haven’t already, I strongly suggest you take the time, now, to carefully review and cautiously consider  this “new” Code.

I call it “new” not only because it became effective to all agreements to arbitrate made on or after July 1, 2013, but because it contains numerous important changes that must be considered as new (dare I say revolutionary) to arbitration!

As usual, the Revised Code contains many provisions that should at least give pause to those who perhaps have not fully considered the impact any number of the changes COULD have.

And, I suggest, if your practice is sensitive to fee shifting, such as is common in personal injury litigation, stop and go read it now!  (And, if Nursing Home work is in your inventory, run to your review.)

(If you can’t find time to do your own complete comparison, one helpful start to the large and important changes would be to Google an excellent related synopsis  article by Jose M. Ferrer,  “Florida’s Arbitration Code Comes of Age”. )

As Mr. Ferrer points  out, the new Code now provides for non-traditional forms of Arbitration Agreements, i.e. contract by emails, the power of early injunctive relief, the power of the summary judgment and even consolidation of similar claims.  (Sound a lot like Circuit Court?  It is supposed to!)

But what should be startling to all sides in any arbitration is that “now”*, among other important new powers, the code permits an arbitrator to award attorneys fees (and “other expenses of arbitration”) if such an award is authorized by law in a civil action involving the same claim or by the agreement of the parties to the arbitration proceeding”.

This was precisely the new “fee shifting” language I had earlier noted recently (clearly a post-2013 Agreement) and cautioned about; wouldn’t such language in that “agreement” open the door for prevailing party awards?  At the least, in my opinion, it opens the door for the use of Florida’s proposal for settlement.

(*Now means:  “By agreement (thus beware?) OR depending upon the law at the time of the Agreement.  Otherwise, the new statute does not apply to any arbitration that commenced or any right that accrued before July 1, 2013.  However, commencing July 1, 2016, all arbitration agreements, regardless of their dated, will be governed by the Revised Code.)

( And, the really troubling language in the agreement I reviewed was that the “carrot” for signing the binding arbitration agreement was that it was to be fully paid for, i.e. a “free”  hearing to the signer, if elected.  However, a more careful reading referred to the “possible” ability of the arbitrator to award fees and costs “under some circumstances”  Does “misleading” come to mind to anyone else?)

Although the prevailing party issue may have always been a prior concern depending upon the language of the full contract in which the Arbitration Agreement is often found as a sub-section, all of the positives and negatives of the use of proposals for settlement have not been before available.

There is more.

The Revised code also now allows arbitrators to award punitive damages to the same extent they would be available in a civil action.  More to think about in your arbitrator selection!  See, Mediators as Arbitrators?, August 1, 2013

Clearly these changes elevate the Arbitrators’ powers much more closely to that of elected judges!  (Some suggest even higher!)

Thus, for those of you who only occasionally see arbitration being used in your practice, a word of warning. As I have noted in past articles, arbitration is coming increasingly to a town near you.  In every legal field arbitration is being pushed as the “cheap alternative” to litigation.

The problem:  Once you leave our carefully regulated and highly predictable judicial system, the alleged savings in money and time in arbitration, is highly questionable in actual practice.

For one example, unlike Civil litigation and the wealth of procedural structure provided by the Rules of Civil Procedure and a totally independent (and “free”) judicial system, unless you are well-versed and constantly diligent in your efforts, arbitration could become an unexpected nightmare.

Paying an arbitrator or a panel of arbitrators for what is “free” in the judicial system is often a shock to the parties in an arbitration when the totality of the arbitrator’s fees and costs arrive.

There is a comparative  loss of the ability to timely “select” your panel and thus obtain any timely “trial” date.  See, Nursing Home Arbitration:  The Headache of Obtaining Your “Deciding” Arbitrator,  August 23, 2013; Arbitration:  Unilateral Steps to Manage Timely Selecting Your “Deciding” Arbitrator, August 30, 2013

And, simply obtaining your hearing date (or, if continued, another) can many times see a much greater time passage than if in comparable Circuit Court.

These are only a few of issues to consider.

Be fore-warned and thus fore-armed.

Make sure  any arbitration is really in your client’s interest.  But, if it is not avoidable (i.e., your client elected without consultation,  make sure you really know just what you are now really facing.

Dan, from Kissimmee, Florida.

(P. S.  Sorry for missing a substantive posting in January.  But the wine and the Mediterranean in Winter in Spain was, frankly, worth it!)

2014 in review

January 22, 2015

The WordPress.com stats helper monkeys prepared a 2014 annual report for this blog.

Here’s an excerpt:

A New York City subway train holds 1,200 people. This blog was viewed about 6,300 times in 2014. If it were a NYC subway train, it would take about 5 trips to carry that many people.

Click here to see the complete report.

Mediation Tip: Always Avoid Your Opposition During Formal Mediation

December 29, 2014

“Loose lips sink ships!”, a popular World War II anti-espionage slogan, generally emphasized the concept that seemingly innocent talk in the work-place became valuable to the enemy because small individual comments when pieced together often revealed much more dangerous strategic information than believed possible by any one speaker.

This sage warning against loose conversation also applies to all participants in any formal mediation process.

One of the common mistakes mediating counsel make during formal mediation is to try to “speed up the process” by interacting and/or talking, directly, with opposing counsel or even the opposing party.

Do yourself, and your client, a real favor:  Don’t!  There is nothing good that can come from such interaction and much resolution progress that can be forever lost.

An opposing participant’s attempted contact can be innocent.  But, more often it is intentional, its purposes are well planned, and your opposition’s purposes are certainly never in your best interest.  Simply stated, your opposition is seeking information your mediator has chosen, thus far, NOT to reveal.

So, even if truly innocently approached by your opponent, please don’t participate in any informal interaction with your opponent during formal mediation.  (Or, at least not until asked to do so by your mediator for a specific, planned purpose of the mediator.)

Think about it: If you really were/are so capable of clear, direct and inoffensive communication and skilled, but guarded, negotiation with your opposition, why then is your formal mediation even necessary?  Why haven’t you simply  resolved your dispute, before formal mediation, by a personal or telephone conference with your opposition?

Answer:  Because most litigators are not skilled in negotiation.  Their skills, honed for convincing an open-minded judge or a truly neutral jury of some singular one-sided advocacy, are of little value when their mediation audience is neither open-minded nor neutral.

And, litigators are trained to talk, not to listen.  (When was the last seminar you attended on “trial listening”?)  See, “Negotiation Tip:  Learn to Become an Active Listener“, April 13, 2011.

However, mediators are trained (and learn from experience) to listen!  By listening they learn just what each individual opponent is really seeking, and thus, what joint plan will best seek a mutual resolution

And, after listening, experienced mediators seek to place all of the parties in their best respective “apparent” positions to seek common ground for resolution; simply stated, to carefully and cautiously capitalize upon conditions, real or “created”, for each mediation participant to be most effective in finding a common resolution for all of the participants.

To do this, it is often necessary for a mediator to literally “create a façade” to work within. Every negotiation is unique and directly dependent upon not only the actual participants to the negotiation, but to the perception of who those participants are (or may be).  See, “Negotiation Tip:  The Importance of the Drama”. October 24, 2013

Further, to maximize or even totally create that negotiation facade takes time and uniquely the inside information that ONLY the mediator possesses.

Good mediators then spend hours carefully selecting and tactically choosing each party’s best position to be presented in its most beneficial manner. The mediator’s distinct advantage over either individual side is knowing the strengths and weaknesses and the negotiating personalities of both sides having the opportunity to repeatedly observe both side.

And, mediators maintain a consistent plan toward resolution, despite the common “insistence” of biased parties for other “plans” whose tactics would almost foreseeably wreck the progress crafted to that point.  See, “A Key Mediator Duty: Maximize the Effectiveness of Negotiation”, November 25, 2011.

Individuals do not have a master plan for all; only for their individual goals.  Accordingly, the more advocates talk directly to their opposition, even meaning well, the more of their true position (not their Mediator’s version) they always give away.  And the more damage they do to their mediator’s efforts.

For one common example, simply “mentioning” some present unilateral position on anything (rarely your real position) can destroy hours of groundwork laid by your mediator on that same position previously created specifically (and perhaps artificially) to find a mutually agreeable end for all!

Your mediator’s role as a go-between is not simply to “parrot” information as given, but rather to filter and  re-structure all communications in their best light in order to protect the parties from themselves!

And there is a good reason that most mediators use the private caucus (some exclusively) so as to shield the negotiation and the negotiating participants from their opponents eyes and their ears.  And, sometimes from their voices.  See, “Mediation Tip: A Radical Idea?  Consider Waiving Your Opening Statement.”  September 30, 2011.

Like the director of a movie, or a good film editor, your mediator is charged with taking the best positions and efforts of each individual opponent and ending with a result pleasing to all.  And, it is not easy.

As in Goldilocks, too much of anything or too little can be fatal to negotiation.  And, also like a movie, even with “just the right” anything, timing can also be everything.

Accordingly, as much as you may believe you “can speed things up” at mediation by direct communications with your opposition, unless it is the suggestion of your mediator, I strongly advise you do not agree to any opposition’s request to “talk directly “.

Or, if you (or your client) really believe you must, at the very least, never, never confer directly to your opponent without your mediator being present.  It is imperative your mediator knows what is actually said at all times.  And, by whom.

In seconds of personal communications in the middle of the “battle”, your direct communications will likely wreck hours of effort by your mediator.  At least do them the courtesy of observing the damage you do to allow them a chance to remedy it later!

Thus, my simple annual mediation advice-gift to you for the holidays:  For greater success in mediation, always (politely) avoid all interactions with your opposition during formal mediation.  Should your formal mediation fail, you (and your client) will have an abundance of time to try your own efforts to “speed up”  resolution.

Happy Holidays and Happy New Year!

Dan, from Orlando, Florida, and New York, New York, (and Altea, Spain!)

 

Dispositive Motions and Mediation: Three Simple Tips for Greater Success

November 29, 2014

The ability of parties to resolve any dispute at mediation, even with total agreement upon all fact and law, will always present a challenge to any mediator simply due to reasonable differences of opinion of opposing parties upon future outcomes with these agreed facts and law.

And even if parties disagree upon a few issues of fact, understanding and appreciating the vagaries of any jury in deciding any disputed fact, will usually permit knowledgeable parties and counsel to try to find common resolution ground.

However, if parties have a serious difference of opinion as to what law to apply to a dispute, the likelihood of resolution, for that single factor alone, diminishes exponentially.

And, certainly, if one side or the other believes they will prevail solely “as a matter of law”,  voluntary pre-hearing or trial resolution then usually becomes impossible.

This is precisely why American legal procedure permits “dispositive” motions; a request to the court to rule timely upon any question of law so that the disputing parties will KNOW what (for the moment) law the judge will apply..  And, it is thus imperative for those who wish to successfully mediate to know how and when to use this technique; when to file such dispositive motions, when to have them heard and how to proceed, when you don’t.

My first simple tip: Always file your dispositive motions well PRIOR to your mediation.

Simply stated, our legal procedure permits any party to ask a judge to “dispose” of a legal issue by a request to timely rule upon the matter well prior to trial and thus, regardless of outcome, at least remove it from any parties’ mediation consideration.

Questions of law are routinely raised by a party disputing any law by a Motion for Summary Judgment.  And the request for rulings upon legal matters can range from individual evidence questions (a partial summary judgement) to addressing the legality of an entire cause of action or any defense to it.

By filing your request for your judge to dispose of any questionable law well prior to mediation, you immediately place yourself into the tactical position of timing your hearing of your motion for its best effect upon your coming mediation.

Such a filing, as discussed below, can then be used by either side for either a negotiating tactic or a genuine desire for a pre-trial narrowing of the specific legal issue.

However, it is when the matter is brought to the Court for ruling that determines the real intent/tactic of the Motion.  And, more importantly, it usefulness to pre-trial resolution.

For example, if you genuinely believe you will prevail, please set the matter for hearing PRIOR to mediation.

But, if you are highly doubtful, do NOT set it for hearing; (but then, please DO NOT give the motion much, if any credence, in your private evaluation for mediation.)

Note the immediate tactical usefulness of the motion, intended or not.

Equally important, however, by filing your motion timely before mediation, you force your mediation opposition to at least know of your mediation position. Further, their likely timely pled response to your motion increases your own mediation knowledge of any defense to your motion.

But, best of all, your timely motion greatly increases the knowledge of your opponent (and thus their represented party) upon this pending legal issue AT MEDIATION. (You know well my belief that more information for your opponent and mediator is only GOOD for you at mediation.)  See,  “Pre-mediation Summaries:  Why Bother?”, July 11, 2013 

My second simple tip: Always dispose of your opposition’s dispositive motions PRIOR to your mediation!

Even if YOU wish to use dispositive motions as a tactic, never let your opposition do so.

Hearings upon un-disposed dispositive motions are in the control of BOTH sides.  In other words, just because your opposition files the motion, their filing does not prevent you from setting it for hearing!

Thus, always use this equal power to call up your opponent’s dispositive motions before mediation.  This simple act will prevent them from turning their alleged dispositive motion into a mere tactical position at mediation.

And, if your opponent files too late for mediation; give strong consideration to a continuance of your mediation!  A non-disposed dispositive motion is just that large an obstacle to mediation.

Generally, the unknown is the largest obstacle at any mediation.  Like anything else in the law, most lawyers (and most parties) have the most difficultly in resolving matters where key matters are simply not known.  And the more unknowns, the more difficult the resolution.

In my opinion, finding out whether the judge supports or rejects your opponent’s legal position, prior to mediation, is critical to your success at mediation.

If your judge rejects your opponent’s legal position, your opponent cannot use the position to your detriment.  If your judge accepts their position, you can timely adjust your own evaluation of your position to take the very best advantage at mediation.  Truly, a win-win for the thinking lawyer.

(Some may argue that calling up your opposition’s motion you know the Court will grant removes your ability to argue at mediation that such may not happen; clearly a commonly held belief.  My response:  Give your opposition a bit more credit; if you “know” it, they already “assume” it!)

My third simple tip:  If you must mediate with undisposed motions, at least understand how to mediate in the face of any non-disposed dispositive motions.

Every mediator’s nightmare:  One side, or worse, both sides, have pending dispositive motions that could have been timely decided, but were not.  And, both sides assert that they will prevail on the same motion!

One procedure:  Send everyone home and adjourn mediation until the motions are heard?  (Just kidding; Mediators are usually not that brave.  And, in the end, only the parties ‘counsel can make the critical decision upon when to mediate.)  See, “Mediation Strategy:  Timing the Scheduling of Your Mediation”, January 28, 2012

My suggested procedure:  learn how to interpret the “real” situation and tailor your evaluation and negotiation within those guidelines.

My personal rule of thumb:  (And yours, if you wish.)

1)  If a motion COULD have been heard before mediation and was not called up my the MOVING party, it must be considered simply a tactical motion and nominal weight given to it.

2)  If the same motion was then also not called up timely by the OPPOSITION when it could have been, the substantive weight given to the motion must be then increased due to the oppositions’s lack of conviction in obtaining a denial.

3)  Result:  With this uncertainty, it  then becomes the mediator’s unwelcome task to determine the comparative weight to be given to the motion, by either side, in exploration resolution potential during private caucus.

Using this rule of thumb at mediation, however, still requires a mediator’s greatest concern.  And, normally the weaker side to the motion’s outcome simply cannot accept this potential weakness in their position and usually prefers to “wait and see” as opposed to capitulation to a lesser value.

Thus, the usual end result of the effect of these non-disposed dispositive motions: no meeting of the minds and no resolution!

Every mediation will always be a challenge under the best of circumstances.  And, my job is to maximize your best efforts at mediation.  See, “A Key Mediator’s Duty:  Maximize the Effectiveness of Negotiations”,  April 25, 2011

Thus, do yourself a favor and make it significantly easier by properly addressing any issue of law prior to mediation.  And, make very, very sure that you properly address and/or plan for all dispositive motions prior to mediation!

Happy Thanksgiving, 2014.

Dan, from New Smyrna Beach, Florida.

Include a “Caesar Whisperer” at Your Next Mediation

October 23, 2014

If there is one quality that is required for repetitive success in mediation, it is objectivity.  Those who can maintain it will succeed at mediation.  Those who cannot are usually doomed to failure.

Derived from the “trial by combat” historical roots of the English legal system, our American system for obtaining justice is a poor breeding ground for the quality of objectivity in our lawyer-litigators.  After all, confidence in ultimate success has always been the ultimate hallmark of combat.   Likewise, American litigators must believe in themselves and their cause to even be trial lawyers.

And when litigators repeatedly succeed in trial, it then becomes increasingly difficult for them to believe they will not always prevail.

Thus begins the foreseeable road to their inevitable loss of  objectivity.

Mediation’s problem, however, is that most litigators simply do not recognize their own lack of objectivity.

One well-known phrase that is often used to describe a lawyer’s total lack of objectivity is that he/she is simply “too much in love” with his/her own position.  And this uncompromising advocacy thus blinds them to the merits of their opposition’s position.  (After all, everyone knows love is blind.)

However, successful mediation demands objectivity on the part of parties, but most importantly, their trial counsel.

There is a solution.  And it is really quite simple.

It is said that Julius Caesar, when entering Rome to his cheering, adoring crowds praising him after each of his many triumphs, always kept a slave by his side at all times to continually whisper in his ear, “You are not a god”.  One of the greatest leaders in history obviously knew he needed to maintain this crucial quality of objectivity to be able to continue to make similar decisions  to those that made him so successful and thus, so revered.

It thus is important for litigators to consider a similar method of maintaining objectivity in mediation. It is critical they be able to objectively evaluate the positions of the opposition so as to make prudent recommendations and permit the compromises so necessary to achieve mutual voluntary resolution.

The solution:  Always bring at least one trusted participant NOT  totally vested in your particular position to specifically assist you and your client in objectively evaluating your mediation decisions.  Another pair of eyes and ears.  Someone who can and will objectively listen, with you, to all of the information available at mediation and offer unbiased suggestions to supplement your opinions.

And, someone whose “whisper” is one to whom you will actually listen!

Such a person need not necessarily even be an attorney.  But, appellate specialists can serve well.  Or, your ‘whisperer” could be a paid neutral consultant.  See, A Mediator Retained Only as a Consultant, July 11, 2012 .   But, regardless, such a person must be a true neutral to be of real value.  (Note:  Despite the best efforts of any “chosen” mediator as the usual neutral voice of objectivity, the usefulness of such an additional voice and ear, in each caucus, is invaluable.)

Parties, of course, are always biased to their own position.  They become even more biased once involved in the litigation process.

And, the American advocacy system of law can easily engender bias into those counsel employed by those parties.  Particularly if they are repeatedly employed by the same parties.

And, simple continued advocacy of one side of an issue, Plaintiff or Defense, undoubtedly leads to more bias, likely more unconscious than conscious.

But, just because bias is understandable, does not make bias right.  And, it certainly is not reasonable.

In fact, isn’t that exactly WHY parties hire counsel?  To COUNSEL them.  And how can you objectively counsel anyone when you are not yourself objective?

Our present mediation system in Florida now requires the “certification” that parties come to mediation with sufficient authority to resolve their dispute. See, A Major Change in the Florida Rules of Procedure Regarding Mediation Procedure, November 22, 2011.   Perhaps it is time to consider a similar required “certification” that someone in those parties also attends with sufficient objectivity to be able to resolve, as well?

Better trial attorneys know to avoid their lack of objectivity.  And, usually take specific steps to avoid it.

Most firms know the value of always including a second lawyer for trials and hearings.  In addition to the obvious training and experience value to the “second”, the lead lawyer is provided with ready access to a more objective view of the proceedings, as they occur and for an after-review.

Another common objectivity tactic is to pick a point in the immediate pre-trial phase (or certainly the trial phase) when the lead trial counsel no longer participates in any negotiation, but rather assigns it to a less-involved associate.  Negotiation requires objectivity; trial requires avoiding objectivity in the name of advocacy.  The two roles are quite incompatible and thus require division of responsibility for maximum efficiency as trial becomes more imminent.

And most experienced trial lawyers, already know to always engage their appellate counsel either early in pre-trial or certainly immediately post-trial and prior to the foreseeable steps that always come following any verdict. Such neutral legal advisors are useful in both avoiding error and recognizing error in order to advise, objectively, the trial lawyer “in the trenches”.

And our Courts, also insist on mediation objectivity.

One of the principal reasons appellate courts require appellate counsel to attend appellate mediations is the recognition that the trial attorneys who have already tried the underlying cause are so obviously vested in a one-sided view of their appellate chances that they (and more importantly, their clients) need the objectivity of another more objective counselor.  See, The Importance of Early Appellate Counsel Actively Participating in Appellate Mediations, June 8, 2012..

Mediations come at many times in the life of a dispute.  And, thus, the better lawyers already  heed this simple idea:  stay objective as long as possible; but, test your continued objectivity by using others to remind you of your potential lack of objectivity.

At your next mediation, simply make sure you take along your own “Caesar Whisperer”.  Your clients (and your Mediator) deserve it.

Dan, from Bronson, Florida