Always Clarify the History of Negotiations

It happened again last week.  Plaintiff's brief indicated he had made a Statutory offer to compromise at $100,000 in November.  The mediator takes him at his word, though I check to make sure that he is willing to begin the negotiations at that number, and not, as sometimes happens, at a number higher than that since the offer to compromise has already lapsed and expired.  Then at the mediation, it comes out that the previous offer was never served on the other side.  Those high stakes that are presented when a party makes a written demand, which may serve to either open the insurance policy if there is a verdict beyond it's limits or give the offeror the right to collect fees and costs if the verdict comes in above that amount are all off.  This error in both communication to the mediator and to the Defense counsel cost the Plaintiff plenty.  After two and a half hours, the parties' stalemated because Plaintiff's counsel wasn't prepared to negotiate in a range that could have settled the case based upon his mistaken belief that he had already communicated the $100,000 demand.  The liens on the case were simply too high, and for the defendants, the stakes too low to worry about a real risk.  Even where there are assertions made that one offered something and one demanded something else, it's critical that these communications are clarified in advance of the mediation whereever possible. 
     In another example, which I discuss in the Chapter I call:  "Who Are you Calling Old?" in my upcoming book, "View from the Middle of the Road:  A Mediator's Perspective on Life, Conflict and Human Interaction", the Plaintiff's attorney told the Defense Counsel he thought his case was worth "mid-six figures".  Believing he meant $150,000., Defense Counsel invited Plaintiff to participate in a mediation.  When the first demand was made at $1 million, Defense Counsel was incensed.  But did Plaintiff's counsel mean mid-six figures was $500,000.?  Both cases eventually settled at what was probably a fair value, but clarifying these pre-mediation settlement discussions at the outset or before the hearing begins can save hours of anguish for parties and counsel.

Resist the Temptation to Negotiate too Soon

Participants in mediation usually know how it ends:  there is a negotiation and one party agrees to pay money to the other.  So why not get right to it?

I am struck by a lot of dialogue that has gone on in the mediator's blogosphere since the fatal shooting of a party to a mediation and his lawyer by an aggrieved party during a mediation in Phoenix.  The most telling comment I saw was offering some humility to mediators.  Though the disputants may know one another well, we have usually less than a full day to get to know two parties, their attorneys, the facts and legal claims.  In truth, we have no real idea of who these disputants are, have been or may become. 

What we do know is that even the most mundane of commercial disputes are rarely solely about the money involved.  There is pride, there is ego, there is a lack of respect or communication or both.  There is deep hurt, shame and sometimes status at stake.  Taking time to listen, attempt to comprehend and then communicate in ways that have not been understood or respected prior to that day takes time.  If you skip a step and rush to numbers, you will undoubtedly sacrifice some of the true benefit offered by this alternative dispute resolution process.  A jury or judge can decide who is right and who is wrong and what the value of the case should be.  A mediator offers a chance to do more than that--if you listen for the cues.