There are as many ways to overcome impediments to settlement as there are creativity and people involved. Every case is unique and every situation is unique. There’s no one “right” answer which means that the parties, the mediator, the lawyers, everybody needs to be nimble and needs to be able to adjust based on how the mediation is going and what comes out. In this episode, Jean Lawler–commercial + insurance mediator and arbitrator–draws from her experience as a mediator to discuss three strategies (plus a bonus strategy!) including:
- Starting settlement discussions by working on the terms, rather than dollar amounts
- Focusing on party interests and needs
- Helping parties envision the future
- *Bonus strategy: What you need to do at the end of mediation day if you don’t quite have a settlement yet
To read the full episode transcript please see the Podcast Website.
About the Host:
Based in Los Angeles, CA, Jean Lawler is an attorney, mediator and arbitrator. She mediates a wide variety of insurance, business, and tort matters at pre-suit, trial and appellate levels, as well as federal ADA accessibility lawsuits re architectural barriers and websites. CIPP/US certified, Jean also mediates matters involving data breaches, ransomware and cyber losses. She arbitrates insurance and business disputes and is on the AAA Commercial Arbitration and Mediation panels.
Prior to becoming a full-time mediator in 2017, Jean was a Senior Partner in a Los Angeles based litigation firm, representing corporations, professionals, non-profits, individuals, and insurers in a broad range of matters, at trial, in arbitration and on appeal - mediating hundreds upon hundreds of cases over the years. Her legal experience has been diverse and international and she has a deep knowledge of the insurance industry, insurance policies and the various risks they insure against (primary, excess, reinsurance, program, surplus lines, London Market, and international insurers). Jean also served as firmwide Managing Partner of her former law firm (being intimately involved with decision making re financial, contract, employment and real estate matters), and at times chaired the firm’s Insurance Law, Cyber & Privacy Law, International Law, and Business & Real Estate Transactions practice groups and, ultimately, serving her many clients as counselor and trusted advisor.
Jean absolutely loves what she does and would be honored to serve as your Mediator or to Arbitrate your dispute! To connect with Jean Lawler, follow her on LinkedIn or find her at LawlerADR.com.
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JEAN LAWLER:
Well, hello. Hi, I’m Jean Lawler, your host of the ROADS TO Resolution ~Closure and ~Certainty podcast. As a mediator, I am honored to be invited into other people’s lives for a few hours, lives that like all of our lives are shaped by the many roads that have brought us, them, everyone, to our particular “today”. And today in mediation…often can involve impediments to settling, and so I thought that it would be helpful to address three possible ways to overcome impediments to settlement.
There are as many ways as there are creativity and people involved. Every case is unique and every situation is unique. There’s no one “right” answer for anybody which means that the parties, the mediator, the lawyers, everybody needs to be nimble and needs to be able to adjust based on how the mediation is going and what comes out. So let’s talk, though, about three possible ways.
First of all is: Working on the terms of a settlement and leaving the number blank. People can get so caught up in numbers that–they're not real for the most part and it’s certainly not until the end when you get to a number that everyone is willing to agree to–an amount to be paid and an amount to receive. And so that’s all well and fine, but I really think that working on the terms in a lot of ways helps. And those terms could be anything from–what’s to be done, to other things that, maybe they wouldn't think about.
Maybe this particular situation needs somebody to do something. Maybe there’s been a loss of a family member in a personal injury case, in a car accident, maybe that family needs healing. Maybe–and I say this as a true example–a family trip to Disney World along with whatever else is done, but that…that then helps the plaintiffs to feel that their loss–whatever it is–is recognized, and appreciated. Maybe just some words of empathy coming. Maybe it's an apology. Maybe it's something else, but usually it will be more than money.
It would only be money probably, in and of itself, when it is, maybe business to business. But even there…You know business leaders, those involved in negotiating settlements for businesses, it's personal as well and can be personal. So those are the kinds of things that I would suggest–work on the terms. Do in that process whatever needs to be done to build confidence and trust and let people know what they’re buying for their money that they’re paying or what they’re giving up for the money that they are going to receive.
Another way to do this is to focus on the interests and needs. And this is along the lines of what I was talking about earlier with the family trip to Disney World, for example. Questions like…
Well what if this happened? What other options? What are your interests and needs? How is it that we can help you put this behind you?
Maybe it's a business dispute over lease terms and the lessee needs to know what exactly their business is going to be able to look like as it operates in that location in the future if they continue on. The lessor, of course, the landlord, needs to know what they are going to receive in rent payments and how the space is to be used, and on and on and on. And so it may be that by focusing on the interests and needs, it could be done.
And certainly we’ve all seen mediations, settlement discussions, where one little thing is what hangs it up. I had one mediation where, and again it was a lease situation, and the coup de gras–the final straw if you will–was over parking spaces. And so that’s what was coming to my mind as I said that.
What are the interests? What are the needs? The need and interest may be as simple as never having anything to do with the other party ever again. And there’s certainly value in that. So focus on those and then you can come back to the money or tie it in as you go along.
Another way you can do it, number three here, would be: To appeal to self-interest. Envision the future.
What is the future going to look like if you don’t have to be in this lawsuit anymore?
And this kind of ties into what I was saying about…You never have to see this person again. You were maybe strangers on the road when your cars collided and you can put this behind you. Maybe business partners that are breaking up or insurance insureds and insurers…Just to be able to get something off of one’s plate–if you will–can be very positive and can be a very helpful thing. And where individuals are involved as opposed to businesses, I think there’s a lot to be said for the concept of waking up the next morning knowing that you don't have to worry about what’s going to happen again. And if it's a business, your business that is at issue, knowing that you’ve resolved it, you can get back to the business of your business or get back to living your life. I think that appealing to those self-interests and envisioning the future really can accomplish a lot and help. Okay?
And then last but not least, even if you get to the end of the day–so to speak–and if you have a settlement, great. You’ve accomplished all this, that’s wonderful. But if you don't quite have a settlement yet, or it looks like you could, or people are now angry and upset and maybe wanting to just be done. As the mediator, or as the lawyers involved, I would urge you to not let the parties leave the mediation without either a conditional offer and demand that’s open for a certain amount of time, or plan for further discussions, or agree to reconvene, or agree that you’ll follow up with telephone calls, just something to provide the parties with some sort of hope. Because to go away with nothing after they’ve worked hard all day, it does have the potential to create really hard feelings. You know…
The other person wasn’t reasonable. They were in bad faith. They weren’t negotiating well…
All these kinds of negative things…Leave them with something positive, even if they don’t realize it at the time. And then of course, ideally there would be follow up by the lawyers, by the mediator, to see if there can be a resolution along the lines that had been discussed or moving even a little further. Maybe after sleeping on it, something will present itself as an opportunity, as an option.
So those are four things that I bring to you today, as ways to overcome impediments to settlement. Certainly there are many others–unlimited number of others–limited only by your imagination and thought processes. So I know that they will be there when the time comes.
Thank you so much for joining me today. Please feel free to follow me on LinkedIn, subscribe to my YouTube channel or listen to my podcast. Reach out to me if you like on my email: jlawler@lawleradr.com, and you have my website address: LawlerADR.com. Thanks so much, and take care. We’ll see you next time. Bye bye.
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