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JEAN LAWLER:
Hello and thanks so much for joining me today. I’m Jean Lawler. I’m the host of the ROADS TO Resolution ~Closure ~Certainty podcast, and it's a pleasure to be here with you. As a mediator, I am honored to be invited into the lives of other people for a few hours. Lives, that like all of our lives, are shaped by the many roads that have brought us to our “today”, roads leading to the unexpected, and roads holding the promises of our “tomorrows”.
So that said, the topic that I wanted to talk about today are: Things Not To Do During Settlement Discussions in Mediations. So I’ve five things that I highlighted, all of which I’ve encountered as the mediator in mediation sessions, and I just thought that I would pass some of them along.
So the first thing I would say not to do is: First and foremost, forgetting that your client needs to be satisfied with the process as well as the outcome of the mediation session or of the settlement negotiations, even if they are not during a mediation session. Remember, you are there as their lawyer to identify what their interests are and to hopefully achieve a settlement for them, be able to negotiate a settlement for them, that will satisfy their interests. So the very first thing to remember is not to put yourself first. Just don’t forget that your client needs to be satisfied with the process of getting there, as well as the outcome. And oftentimes too much focus is on the outcome and not the process. So be respectful, understanding, logical, things like that. Keeping your client as calm as possible and as hopeful and positive as possible is a great thing to do.
The second thing I would say not to do during settlement discussions–and this one’s happened now several times that I’m surprised–but: Asking the mediator to go back to the other side to ask the other party to lower either their demand or their offer, just because you don't like the demand or the offer that the mediator is bringing to you from their side. Yes, that actually has happened where–and it must happen more than I would have thought–but I’m bringing an offer in, or I'm bringing a demand into the other room, and the people that are on the receiving end of that think it's outrageous or it’s inappropriate or whatever. It's just too much or too little, whatever, it's just too too too. And they say, “No, they have to lower it.”
Well I say to these people usually, “Would you want me to come back to you and tell you that? No. You wouldn’t. You wouldn’t want that at all and you wouldn't be happy if I came back and said, ‘Look, they want you to just go ahead and lower your demand,’” without having a counter or, “Lower your offer,” without having a counter. So I would say to you if you’re in that situation of not being happy with the counter or whatever it might be, whether it's an offer or demand, you think it's too high or it’s too low, just counter with something that maybe keeps it in the same range of being too high or too low. You’re not at the “dance floor” yet, you haven't gotten there. And don't ask the mediator to go back in and ask the other side to unilaterally lower their demand or increase their offer. That is not going to be a good look, and it's really not going to help the process at all.
The third thing is: Being afraid to make a move. Don't be afraid to make a move, even a big move, if it's within your range of reasonableness. You can always slow down. So just matching the last offer to a demand or an offer, the last move…There are times it’s appropriate, don’t get me wrong, but to just do that because you think their offer or demand is too high or too low or whatever is…It doesn’t necessarily help the process and certainly if that was going to go on you’d be there all day and all night in making the little moves where they matched each other or big moves where they matched each other. But somebody has to make a move and you should know obviously coming into the mediation what your range is that would be acceptable, what your goals are.
And so as I tell people, “Look, somebody’s got to make a move here. Do you want to be the one?” And we talk about it. And then oftentimes people will make the move, and then that makes all the difference in the world, because then the other side will start moving as well. And again, you can always slow it down, as long as whatever move you make is one you can live with, and then you can test the other side and see where they’ll go so to speak.
The fourth thing I would say not to do is: Asking the mediator for a mediator’s proposal when the numbers are not even close, when they are so far apart. Really, you should not be–in my opinion–you should not be negotiating a settlement in the sense of negotiating for a mediator’s proposal. You should be negotiating to settle the case–the terms, the amounts of money, the consideration, you know, all the various factors that go into settlement. I think it's a mistake to negotiate to land in a position where you want or need a mediator’s proposal. Wanting or needing a mediator’s proposal is not a problem if that's best for the case, and if that’s something the mediator does, if that’s something you want. The world is divided on that so to speak. Take control, keep the control yourself. Don’t give the control to the mediator necessarily. Negotiate in a way that you are going to be able to settle the case directly.
And the fifth mistake that I see and would really urge you not to do as you’re engaging in settlement discussions is: Giving up too soon. You know I learned this early in my mediation career when I had a…Let’s see it was a plaintiff lawyer in that case who was not happy with what the defense came back with, and she said, “Forget it. I’m leaving. We’re done.” And I took her very literally, and I respected her right to say that and to do that, as I do and as I would, but I let her go, and the defense just said, “What, you mean they’ve left?”
Well they had more, they were playing this also in their way. So now I tell people that story when they are ready to walk out. And I say, “No no no, please do not leave, do not give up, it's when the going gets tough that you really get closer to a settlement.” Remember you’re trying to get to the “dance floor” and dance, and narrowing the “dance floor” as you make your offers and demands to a point where you’re within a realm where settlement can happen. That’s the job, and that's the goal. And then ultimately and ideally a settlement can happen that is in accord with the client’s interests. Oftentimes what a client will agree to settle for may not be what they first thought they would be settling for when they come into a mediation, but needless to say, they are relieved to have the matter over with and done.
So those are just five things I’ve seen in mediation over the last five years as a mediator that I would suggest should be avoided if at all possible. Thank you so much for joining me today. Again, I’m Jean Lawler, and please feel free to follow me on my YouTube channel–ROADS TO Resolution ~Closure and ~Certainty. I’m on LinkedIn, and my website is LawlerADR.com. Thanks so much. Bye.
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