Negotiation News: Volume 4, Issue 2

Picture this:  You’re in mediation, and things seem to be going well.  The mediator is making progress with the parties, and the moves from each side signal a willingness to move toward settlement.

Then you fall in love.  The negotiation convergence point is indicating a certain number, and you tell your client that the case should settle for that number.  The client buys into a settlement at that number, and then – crash! It all stops suddenly.

What happened, and what do you do?

Don’t Fall in Love During Mediation

It is so tempting to get excited about an end settlement before it has finalized. A few years back, when I was representing plaintiffs in a construction case, the mediator virtually guarantee my clients and I that more money was available after a phone call, only to have the claims representative completely refuse to pay anything. Likewise, I have been occasionally been guilty as a mediator of looking ahead to a target number after strong indications have come from one room, only to have them completely change a short time later.

This can be highly counterproductive to both sides. It can especially be detrimental and embarrassing to lawyers representing plaintiffs who are unfamiliar with and new to the process.

This can be easily avoided by resisting the urge to jump ahead to a result. While it is perfectly appropriate and even beneficial to look ahead in the negotiation process and to prepare oneself, after making an offer, for the anticipated response from the other side. Nevertheless, the end result should be avoided until the end of the mediation, when it comes into much sharper focus. When discussing the outcomes before the mediation, a discussion of the acceptable or potential ranges is the far better, and likely to cause far fewer surprises when the settlement is finally achieved.

So if you must fall in love with an end result, resist the urge to do it until the very end of negotiations. Keep the range in mind, negotiate toward that end, but allow flexibility to guide you toward a satisfactory result.

• Charity

In this season of giving, and importantly, into the New Year when charitable needs continue to exist, a portion of mediation fees generated will be donated to a charity of your choosing. When booking your mediation, please direct me to the website of your charity.

I look forward to working with you in mediation soon!

Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. He can be reached via telephone at 818-616-8500, at www.judgemediation.com or via email at [email protected].