Mediation & Settlement

29 Oct: “SETTLEMENT” AIN’T A BAD WORD!

My experience with clients today is that they want (and perhaps even expect) their case to settle. They want to avoid the stress and delay of a trial, and also the risk of an unacceptable result (to them). So the first question after “What is my case worth?” is: “Can you settle my case.” So educating the client about process and prospects of a resolution short of trial should and usually begins at the first client meeting.  And its discussion early on is important to successfully settling clients’ cases because obviously they hold the authority to settle. So it is important to have a dialogue with clients about the negotiating process and begin educating clients about how this all works and what their expectations should be for a settlement instead of a trial. Here are some thoughts on how to educate and prepare clients on settling their cases: Prepare for the…

30 Jan: Three Cliches that Apply to Mediation and Settlement Negotiation

Tips to Getting to the Goal Line in Civil Litigation: Three Cliches that Apply to Mediation and Settlement Negotiation You don’t have to go to the law books to find the basic principles which apply to negotiation and settlement. In fact, these basic principles may be ones you learned growing up and possibly used before you ever entered law school. They are from clichés that we all have heard and probably used in our personal lives, but do they apply to our work as trial lawyers and litigators? Here are some I apply regularly: 1. YOU CAN’T GET BLOOD OUT OF A TURNIP. “‘You can’t get blood from a stone.’ You can’t get something from someone who doesn’t have it. The proverb has been traced back to G. Torriano’s ‘Common Place of Italian Proverbs.’ First attested in the United States in the ‘Letters from William Cobbett to Edward Thornton.’ The…

17 Nov: Preparing to be Effective at Mediation: Stating the Obvious But the Obvious Needs to Be Restated!

One of my biggest complaints is that some lawyers (and perhaps clients) just do not get it—that it takes considerable effort and preparation to make the mediation process work. It takes: A common and good faith interest in mediation, An exchange of complete and thoughtfully prepared mediation statements and exhibits well in advance of the mediation date, The presence of those with authority to settle (with real authority please!), and A level of candor and disclosure that allows the parties top assess realistically assess the other side’s position. And perhaps more than anything, a willingness to listen to what the other side has to say, along with carefully assessing the position counter to the client’s. If this is done—and it should be if counsel’s representation in mediation is to meet professional standards—then there will be a full discussion and exchange of information before and during the mediation so that the chances of settlement increase.At that time, it seemed to…

20 Jul: My Passion for Dispute Resolution

I have a passion for dispute resolution.  It comes from my heritage – a dad who was a lawyer in the Midwest in the 50’s, 60’s and until he retired at 85 years old in the 90’s.  He was a master negotiator but at the same time a supreme diplomat.  His best friend – my Godfather – told me that Dad could tell someone to “go to hell” and they thought they received the Congressional Medal of Honor. I spent a number of years as a traditional “defense” lawyer in the civil litigation arena.  As part of that, I became involved in the early Insurance “bad faith” cases. I tried – as a defense lawyer – the first two first party bad faith cases to go to verdict in California (before Egan was tried in November 1974).  There was no bifurcated trial with the financial worth of the insurer not being known…

02 Mar: The Resolution Advocate: Preparing for an Effective Mediation

PREPARING FOR AN EFFECTIVE MEDIATION It takes considerable effort and preparation to make the mediation process work. One complaint I hear over and over is that some lawyers — and perhaps clients —  just don’t get it. Based on my experience, some of what it takes to prepare for an effective mediation: A common and good faith interest in mediation An exchange of complete and thoughtfully prepared mediation statements and exhibits well in advance of the mediation date The presence of those with real authority to settle A level of candor and disclosure that allows the parties to realistically assess the other side’s position STATING THE OBVIOUS Perhaps the most important trait of a good advocate who also serves as a mediator is listening to what the other side has to say, along with carefully assessing the position counter to the clients. If this is done — and it should be if counsel’s representation in mediation is to meet…