In the mediation of a litigated case, there comes a time when participants consider the potential outcome at trial or hearing. This is the part of mediation where you, as mediator, help them sort through and consider their BATNA (best alternative to a negotiated agreement), WATNA (worst alternative to a negotiated agreement) and MLATNA (most likely alternative to a negotiated agreement). With this analysis in hand, participants are then usually able to make more informed choices about how to proceed - settle or go to trial.
Now there is another tool to add to your mediator toolbox when discussing the case with plaintiffs. A soon to be published study found that settling was better for plaintiffs than going to trial. According to study co-author Randall L. Kiser - “The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more.” Here's a link to a New York Times story on the study - Study Article. The study reviewed 2,054 cases from 2002 - 2005 and found that plaintiffs made the wrong decision in going to trial, i.e., obtained a lower economic result as compared to an offered settlement, in 61% of the cases while for defendants, the figure was much lower at 24%.
So, next time you are in private caucus with the plaintiff and counsel, you might ask if they've heard of this study and it's results. It might help participants rethink their perspective on the case and create further opportunity to explore settlement.
Now there is another tool to add to your mediator toolbox when discussing the case with plaintiffs. A soon to be published study found that settling was better for plaintiffs than going to trial. According to study co-author Randall L. Kiser - “The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more.” Here's a link to a New York Times story on the study - Study Article. The study reviewed 2,054 cases from 2002 - 2005 and found that plaintiffs made the wrong decision in going to trial, i.e., obtained a lower economic result as compared to an offered settlement, in 61% of the cases while for defendants, the figure was much lower at 24%.
So, next time you are in private caucus with the plaintiff and counsel, you might ask if they've heard of this study and it's results. It might help participants rethink their perspective on the case and create further opportunity to explore settlement.
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