Mediation – Tell Me More

Mediation is all about the sharing of information. Each offer and counteroffer provide more information to the other side about the prospects of reaching an agreement. In a recent case, the parties were hopelessly apart. The plaintiff had sustained severe injuries and was seeking a settlement in the high-seven figures. Defendant had signaled through its offers that its maximum authority was right at $1 million. As we were nearing the end of the day, the defendant’s counsel provided me with the information I needed to settle the case.

Defense counsel advised me that while it was correct that his maximum authority was $1 million, he believed that his client would make a big move up on the condition that plaintiff would accept such sum. The problem was that the plaintiff was seeking three times the amount that defendant indicated would be its max money even after going back to his client. Armed with this information, I then had a heart-to-heart conversation with the plaintiff’s counsel. I made clear that while defendant’s maximum authority at mediation was $1 million, I believed that plaintiff would increase that amount considerably if it knew that such settlement amount would settle the case. It required the plaintiff seriously to consider whether it would pass on significant guaranteed money and take the risk of doing better or worse at trial. After carefully weighing her risks, the plaintiff indicated that she would accept the higher settlement amount that the defendant’s counsel believed his client would approve. That back and forth provided me with the perfect mediator’s proposal to settle the case.

If the defendant’s counsel did not share his honest thoughts about where settlement was possible, the case would not have settled and would surely have gone to trial. Additional information was essential to making the mediation successful.