Mediation tip: Giving a demand before mediation

February 10, 2013

Fear drives many actions and inactions in a mediation. For example, sometimes defendants request an opening demand from plaintiff before going into mediation. The plaintiff's fear is that upon giving the demand, the defendant will decide to forego mediation. That is 1 possibility, but another one, in fact the one I more commonly see, is that an advance demand may help the defense prepare their client or carrier for obtaining sufficient authority. Not surprisingly, plaintiff and defense counsel usually see and value their cases differently from one another. Both sides may think they "understand" the other side's case, yet, savvy or experienced lawyers know first, that a plaintiff needs to "inflate" their demand to allow room for negotiation; also that by digging into the case at mediation, amid the sea of facts and arguments, the parties often learn things they could not envision. So long as everyone is committed to giving settlement efforts a good faith try, both sides may benefit from an advance demand, or at least a range. Sometimes in the right case, I will ask all parties to simultaneously give an opening number in advance of mediation. This requires work ahead of time with all sides, but it is beneficial in getting everyone past the initial "insult" phase, building trust in each other, or helping a party new to mediation to get used to the idea that what they expect to achieve will take time and patience. If the feared outcome does occur, e.g. the demand causes the mediation to not go forward, then it likely saved everyone wasted time and money.

 

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