Saturday, January 12, 2013

TIMING AND ASKING HARD QUESTIONS

At this time of year, we are acutely aware of timing.  This can affect your mediation in ways of which you should be conscious.  This week, consider the following Mediation Tools:
3) Timing:  In an employment case, does your client want the damages to be taken in this calendar year when earnings are less than last year? Does your client want to settle the lawsuit so that he can return to work without compromising his claim to future lost wages? Can your client afford to suffer further lost earnings for the sake of building damages in the lawsuit?  Does the Defendant have an idea of the value of the claims so that they are fully prepare to negotiate a final resolution? Have critical depositions been completed? Do the parties need to approach that "fiscal cliff" by getting very near to trial in order to be ready to fully settle the dispute?  Does one or the other party need to experience the "brinksmanship" that the U.S. Senate did before they can arrive at a compromise?  These are issues worth addressing in every mediation.
4) Ask the Hard Questions:  Mediators can be most effective if they ask the hard questions of the lawyers or their clients at the outset or even before commencing the hearing.  So often, the events that occurred at the time the dispute arose caused one party to make a decision to pursue a lawsuit and the other party to resist settling the claim.  Take, for example, the dog bite case where, instead of apologizing and offering to pay for medical attention, the owner screams at the victim about scaring the animal.  Upon inquiry, say that dog owner refers the victim to her lawyer or insurance carrier, instead of offering to take care of the bills directly upon presentation.  Where does the victim go next?  Often to a lawyer!  At that point, the communication between the two disputants has completely broken down and settling the lawsuit without formal intervention through a neutral becomes nearly hopeless.  Once you have made clear to the mediator the basis for the dispute and the particular dynamics between the parties, it may be much smoother to resolve the dispute than it was "on the street" without your assistance and the intervention of a neutral third party.