How to pop the (mediation) question - a mediator’s perspective

Obermayer Rebmann Maxwell & Hippel LLP

Obermayer Rebmann Maxwell & Hippel LLP

You are litigating a case and you want to raise the topic of settlement with the other side. It may be that your client has fatigue from spending money on legal fees and just wants to be done, you don’t like the way the litigation is going, or your client has a financial incentive to settle by year-end. You think mediation would be helpful as the parties are very far apart and there are difficult personalities on one side or the other.

You are afraid, however, to prejudice your position by making the other side think that you are desperate to settle. There is no court-ordered mediation on the horizon. How best to get the other side to the table?

You are right to be concerned. Parties and their lawyers are perceptive and will assume you are suggesting mediation because you are desperate to settle. There is never a way to avoid this entirely. Trying to your couch your desire to mediate in an excuse that you “want to see if it is possible to settle before both parties spend more money on litigation” will have limited effect, as parties see through this.

A better approach is to suggest to the other party that each side serve a settlement offer, and then both parties can evaluate whether each other is displaying sufficient desire to settle to make mediation worthwhile. This changes the focus of the question—instead of asking whether the other side will attend mediation because you are motivated to settle, you are effectively asking whether both sides are motivated to settle. It also forces the other side to deliberate seriously on their motivation to settle, rather than simply assessing your motivation. You are also, in effect, saying that you are only interested in attending mediation if both sides are motivated.

This also can increase the likelihood of settlement by ensuring that both parties are motivated and have reasonable expectations for mediation. In my experience as a mediator, the best predictor of success is whether both parties come to mediation voluntarily and with a genuine desire to make a deal. Conversely, mediation rarely works where one party has little motivation to settle and is only mediating because a court ordered it to mediate or because it thinks the other side will simply capitulate. This way, you avoid displaying desperation to the other side and reduce the likelihood that you will waste time and money preparing for mediation only to find that the other side is not prepared to compromise.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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