|The next time you are in a mediation, you can do several things to
increase your chances of reaching a settlement agreement. The most important of these is
to listen. Think of yourself as a detective whose job it is to gather clues about what
matters to each person involved, including opposing counsel. Listen as your client tells
his or her story during the opening phase, making sure that you understand your client's
current goals and priorities.
Listen even harder to what the other side has to say. For
the time being, shed any assumptions that you may have about what they want, including
what you have read in the pleadings and heard in earlier settlement discussions. Turn off
the part of your brain that wants to engage in a silent rebuttal each time the other side
speaks, and instead, listen for new information.
If you are defense counsel, do not assume that the only way to meet the plaintiff's
needs is to offer money. In most cases, the plaintiff will be open to a settlement
package, consisting of cash, as well as other types of compensation which are easier for
the defendant to offer. If you are plaintiff's counsel, look for ways in which the other
side can provide something of value to your client, at a relatively low cost to them.
Although your mediator may not be able to take a demand for $100,000 and an offer of
$10,000 and bludgeon the parties into splitting the difference, experienced mediators know
that an intangible, such as an apology or an expression of appreciation, can be worth
thousands of dollars.
The next time you are in a mediation, search for intangibles and other non-cash forms
of restitution. These often comprise the key to a solution that both sides can live with.
If you or your mediator make the mistake of viewing money damages as the only solution,
you will inevitably miss possibilities for settlement that would have left both sides much
Mediators look for a piece of the puzzle that we call the "high-low
exchange," something that feels great for one side to receive and is easy for the
other to give. You can assist your mediator in searching for the high-low exchange.
Think outside the lines. Make a list of as many solutions as you can dream up,
including some intangibles, some cash, and some non-cash items. If you focus on finding
creative solutions that meet the needs of both sides, you will notice that many more of
your cases will settle. More importantly, your clients will view you as a successful
problem-solver and turn to you in the future for help in preventing and resolving
Many times, the possibility of achieving a settlement rests on whether or not someone
is creative enough to add value to a cash offer with a non-cash item. These options can
A private apology. A heartfelt "I'm
sorry" by the defendant can be worth thousands of dollars, which is why good
mediators won't proceed with a case where the defendant is not personally present. An
insurance adjuster can't offer a credible apology; only the defendant can do that. An
apology can be accompanied by an acknowledgement not only of the plaintiff's physical and
emotional pain, but also of other losses experienced by the plaintiff as a result of the
A public apology which is designed to set the
record straight in front of a larger audience, such as a group of co-workers or family
members who were also affected.
Words of appreciation regarding some aspect of a
job that was done well, or some well-intended attempt to salvage a botched job.
Information that the defendant has done something
to ensure that others won't be similarly inconvenienced, injured or damaged.
A second chance--an opportunity for the defendant
to do a better job for the plaintiff the next time or to repair the damage done this time.
A free (you name it) . . . ad in the defendant's
publication, year of car washes, month's rent, crown or bridge, shopping cart full of
groceries, or year of consulting services.
The extent to which you allow yourself to look beyond traditional legal remedies will
determine your usefulness to your clients in a mediation.
Brainstorm with your clients for solutions that might work for both sides, prior to and
during the mediation.
Access that creative part of yourself that existed before you entered law school and
took the course in remedies.
Let your imagination run loose.
That crazy idea that you are tempted to dismiss as too far out might be the key to a
successful settlement package, the missing link that seals the deal by adding value for
the plaintiff, at little or no cost to the defendant.
Elizabeth L. Allen is a member of the
California bar and co-owner of Coast to Coast Mediation Center in Encinitas. She and her
husband, Donald D. Mohr, co-authored "Affordable Justice--how to settle any dispute,
including divorce, out of court."