Published: January 2023
Written by: Alfred A. LaSorte, Jr.
Harnessing Settlement Momentum for a Successful Mediation
Have you experienced a mediation which starts out like this – negative body language from all parties during the initial joint conference, and your clients privately expressing negative thoughts about the other side – about how greedy, untrustworthy, or sneaky they (and their counsel) are? Then, after a few hours with little substantive progress, it seems like settlement has no chance.
Not an uncommon scenario. Yet, many mediations that start this way still end up settling. An interesting thing happens 3/4 of the way through. Momentum shifts in both rooms from active resistance to active cooperation. And after some more hard work on all sides, the case eventually settles.
An unpromising beginning morphs into a successful settlement. How, and why, does this happen? Several factors can contribute to this momentum shift:
- Time in the room. Mediation is foreign processes to most. Parties can be nervous coming in, not knowing what to expect, and mistakenly thinking it’s smart to act tough. Spending time with their counsel in a conference room (or a Zoom virtual breakout room) can settle clients down and they start to loosen up.
- The mediator as the voice of reason. Lawyers who like their cases, and their clients, can end up “preaching to the choir” about the strength of cases, causing unrealistic optimism, in turn limiting the clients’ willingness to compromise. An effective mediator can often defuse this through some frank discussions with the parties, with them gradually realizing there are two sides to the story and their cases aren’t slam dunks. This often takes multiple discussions throughout the day before it sinks in.
- Seeing movement from the opposing party. Nobody wants to bid against themselves. And posturing and tough talk in initial sessions serve only to widen the gap between the two sides. Minimal moves are usually met with equally minimal responsive moves, resulting in frustration on both sides. But when one side eventually sees real movement from the other, it can loosen them up, helping move them from “we’ll see them in court” to “let’s see how favorable a number we can get them to.”
- Humanizing the opposition. We often assume the worst motives in others, and the best in ourselves. In mediation, this can mean seeing the opposition as evil, or greedy, or _________ (fill in any unflattering adjective). Parties don’t see or hear what goes on in the other side’s room, or how their opponents act. But the mediator does. General reports from the mediator that the other side truly is making an effort can eventually help turn the tide.
How can you increase the chance of seeing this momentum shift at your next mediation?
1) Start with realistic demands. My biggest mediation pet peeve is plaintiffs whose opening demands are higher than their “best day in court” number. (I hate when I hear “But we need to start with a cushion so we’ve got some room to move!”) The near-universal response to such a demand is a minimal defense counter. After a couple of hours, even with “reductions,” the plaintiff is still near their actual “best day in court” number and the defense feels like it’s being played. The mediation goes south from there.
My strongest advice to both sides is this – start with a compromise number. Tell the other side it’s a compromise, and that you expect compromise from them as well. You will save hours of wasted time and will send the “I’m reasonable” message the other side needs to hear in order to get reasonable themselves.
2) Hang in there. Often it takes a while for the “spirit of compromise” to reveal itself. Rather than encouraging your client to leave at the first hint the other side is being unreasonable, suggest they stick around, for at least another couple of rounds. Mediation is not a one-hour process. Give it time to work.
3) Let the mediator help. It can be hard for lawyers to defend the opposing parties’ motivations. Clients want you to agree that the other side is just plain bad. Use the mediator to defuse animosity and distrust. When he or she does so, stay out of their way. It’s frustrating as a mediator when a lawyer fights too hard and fires up their client, increasing the gulf between the two sides. The mediator is there to facilitate settlement. Let them help you get there!
4) Once you sense the momentum is shifting, go with it. Talk to your client. Encourage them to go that extra step toward settlement. (Your counterpart in the other room is likely doing the same with his or her client at this point.)
And help them understand the true risks and costs of going forward with a trial – crucial info while weighing the relative benefits of a settlement proposal. Whether to settle is of course the client’s call, not yours. But make sure they have the tools necessary to make an informed decision.
You can help make this momentum shift happen for your client. Some cases do just need to be tried, and some mediations must fail. But in the mediation room, when you sense momentum starting to build toward settlement, lean in and make it happen!
For additional ADR tips and resources, go to https://www.palmbeachbar.org/alternative-dispute-resolution-committee/
After a long career at Shutts & Bowen LLP as a commercial litigator specializing in real estate and general business cases, Mr. LaSorte now acts exclusively as mediator and expert witness through his own firm, Alfred A. LaSorte, Jr., P.A. d/b/a LaSorte Mediation. (www.LaSorteMediation.com). Mr. LaSorte can be reached at (561) 286-7994 and Al@LaSorteMediation.com.