Monday, February 23, 2009

Get engaged !

These are tough economic times. What’s the effect on mediation practices? I was at a recent educational program and on a break spoke with a plaintiff’s attorney about how to settle claims in mediation with the economy in its difficult state. While there is no clear or easy answer, I suggest the following approach.

If you want to get your case settled, you need to get everyone involved genuinely interested. From the plaintiff’s counsel perspective, you need to fully engage both defense counsel and insurance professional in the settlement process. The prime mover in such engagement is making a "reasonable" settlement proposal. This works best when done before mediation so that defense counsel and insurance professional have time to review and prepare for mediation, i.e., set reserves, get authority, etc.

With respect to plaintiff’s initial proposal, don’t make it so high that defense counsel and insurance professional have no belief in potential settlement. If the proposal is out of this world high, then they will not be engaged in the process and are not likely to do any additional work to obtain greater authority than their own previous evaluation. On the other hand, a demand that defense counsel and insurance professional consider "reasonable," can go a long way towards creating a more conducive settlement atmosphere. Of course, any demand must build in some negotiating room, just consider how much room you really need!

The same concept holds true for the defense side of things in terms of making counter offers. If you make proposals that the other side perceives as a decent step, then they are likely to also take a decent step. And once folks are moving, then an opportunity is created. With no movement or very small increments, a negotiation or mediation can get bogged down. People can become frustrated and lose interest. And with interest lost, comes a lost opportunity.

So, get folks engaged. Get them believing that a settlement can be reached and you have set up your mediation for opportunity.

Thursday, February 5, 2009

Super Bowl Party

Did you hear that President Obama had a Super Bowl party? And not just any party, but a bipartisan party. President Obama invited elected officials from both political parties. What a great idea to get folks together in a less pressured atmosphere, to make connections and build relationships. It certainly can't hurt and who knows, it might help down the road.

Does any of this sound familiar to you as mediator? Have you ever tried to get folks in a mediation to meet over a cup of coffee, lunch or a late afternoon snack? I have and find that when you get people in the same room who are in dispute, they can be tense, they revert to various "posturing" and "positioning" behaviors that are not always constructive. However, get together in the break room over coffee or that mid afternoon cookie and often the interaction is very different. This is particularly true with people who know each other (usually the attorneys) and such interactions, even for small moments, can provide useful information to you as mediator and create opportunities.

I bring muffins and sometimes fruit to my morning mediations and usually cookies in the afternoon for this very reason. I try to create personal interactions that are not specifically directed at resolving or settling the dispute. I create personal interactions to create connections between the mediation participants, and in so doing, it sometimes opens a door in the negotiation that had been closed.

So, next mediation - have a Super Bowl (Dispute) Party!