Don’t Give Up before You Start

“This case is never going to settle! ”

Most  mediators have entered a mediation with one or more of the parties saying this. What a dreadful way to start a negotiation. Giving up before they even start.  There are many reasons parties may feel that way. They feel hopeless, misunderstood, bitter, afraid, or angry or they could just be posturing. The reality is, however, that upward of 90% of cases actually do settle before trial. So how do they get walked off the ledge?

First, I want to make sure they really would like to settle if they got a decent offer or if they really are” hell bent” on going to trial. So I ask them, “Are you really interested in settling your case today or not?” Although there may be a legitimate reason to prefer trial I haven’t seen it yet, if mediation brings an acceptable offer to the table. What the parties are really saying, when they speak about a case not settling, is that they are certain they will never get all of what they want so “why waste time and money on a fruitless attempt to settle."  But they have rarely thought through the alternative. They are giving up before they  start.  If, instead, they expressed an interest in settlement for acceptable terms, then there is reason to move forward. I  remind the parties that in a mediation they will have the final word in deciding what the terms of settlement will or will not be.   In a trial or arbitration, in contrast, someone else will decide their fate.

I prefer to  start with what the parties, not counsel, believe are the most important facts. Why do they feel they are entitled to win, whether they are plaintiffs or defendants? What may seem most important to me, as the mediator, might not be the most important to the parties. What emotions are involved? Hurt? Disgust? Anger? The parties often feel the other side “just doesn’t understand” or they attribute malice or greed to  the other side. To get the parties to look objectively at their case, they must understand that they have to try to separate out their negative emotions.  

Moving forward we explore what if any legal issues are still in dispute? In my opinion, it’s not until the mediator has all this from both sides should the parties be asked for any monetary or others proposals to start the negotiation process.  The parties should be reminded that negotiations are just that. It’s compromise. No one gets everything they want but they can get to an agreement.

There are a lot of things to be considered before running head first into trial such as the cost of motion practice, depositions, experts, and time away from work and family. The process of mediation may take longer than hoped, with the mediator going back and forth exploring different options, but in the end it is time well spent, both economically and emotionally for the parties. Remember, over 90% of cases settle and it’s almost 100% better that they settle earlier rather than later so DON’T GIVE UP.