Tag: Mediator

Bottom Lines: Don’t Reveal, But Do Discuss

{3:54 minutes to read} In my last blog I discussed why you should not reveal your bottom line during a mediation. You can read that here.

My teaser line at the end was that it’s important for attorneys and clients to discuss bottom lines. And that discussion may have to occur several times. Parties generally enter a mediation with very different ideas as to what a case is worth or what it should settle for. The plaintiff thinks the defendant should take out the checkbook and be prepared to write a check with lots of zeros. The defendant thinks that any check should contain only zeros.

For all sorts of reasons, there are cases that can’t settle at mediation. However, the majority can and do eventually result in a settlement. Most of those could be resolved through mediation.

Commercial Mediation: What’s Your Bottom Line?

{3:06 minutes to read}

When, if ever, do you let a mediator know your bottom line?

There are three answers to this question:

Never.
When you say, “Okay, we can settle for that.”
When it’s 6:30 p.m., and you (or your attorney or your client) have a 7:30 train to make. You know you’re pretty close to an agreement, and walking away now is painful given the time and money you’ve spent at the mediation. You don’t want to leave with the case unresolved, especially since you’ll have to wake up in the morning, and probably for quite a while, with the case still around.

Mediation: Post-Nup as Marriage Counseling and Marriage Preservation

{4:12 minutes to read} Sometimes couples who come to mediation are unsure if they really want to get divorced. They may not even know they are unsure.

There are all sorts of reasons for people in a rocky relationship to stay together. The two that stand out are kids and financial resources. Even for well-off couples, the cost of post-divorce life is often surprising.

Bickering parents, of course, can be a source of great strain for children and sometimes breaking up can bring a measure of relief to everyone. But the strains in a relationship may not be ones that require breaking up and many couples might ideally like to stay together permanently, or at least until the kids are grown—meaning after high school or college—when financial pressures are reduced.

Easier Said Than Done

{2:54 minutes to read} I recently came across an Employee Handbook for a large metropolitan hospital. The handbook is relatively short, only 24 pages. It gives all sorts of information about benefits, professional development, direct deposit of paychecks, equal opportunity, employee health services, etc. There is also a brief, two-paragraph section on Grievance Procedures, where it says:

The hospital strives to be consistent and fair in its labor relations and pursues the development of sound working relationships among supervisors and employees. Usually, issues resulting in a grievance are the result of a misunderstanding and can be resolved through improved communication between management and employees.

Appellate Mediations – Part 2

{3:30 minutes to read}

In my last blog, I discussed why mediating a case on appeal often makes sense, even to the party that has won Round 1. This time I want to focus on the potential risks and benefits that winners and losers face in the appeal process and how that affects their willingness to mediate.

Losers

If you lose on appeal, you really lose, and perhaps with greater consequences. No one wants to lose at the trial court level, but having an appellate court give it a stamp of approval can be even worse. The loser may then be living with the consequences for years to come. However, mediating the case before there is a decision on the appeal, can result in reducing damages for a defendant, obtaining some damages for a plaintiff, or designing a resolution where the outcome is more secure, slightly less onerous, and works in the long run.

Mediate an Appeal? Wait, Didn't Someone Already Win?

{3:12 minutes to read} One might think that mediating cases on appeal would be a losing proposition. After all, someone has already won. What’s the motivation for the winner to mediate? Oftentimes, plenty.

Cases on appeal arise in many different contexts: after a full trial, after a successful summary judgment motion or motion to dismiss, even, occasionally, on a discovery matter. The winning party typically has the upper hand. But this is usually only one aspect of the mediation. It turns out that parties who have won the first round are often still interested in resolving a matter, and mediation may be the easiest and most efficient way to do it.

Appeals, like many other aspects of our legal system, can be costly and time consuming. And the outcome isn’t guaranteed. Lower courts get reversed or judgments are modified. This can mean even more litigation. Both the winning and losing parties need to consider these factors. Even on appeal, parties often want to wrap things up, and mediating at this stage can provide an unusual opportunity to do that. The legal issues may be clearly framed, the litigants know their case very well, and the facts will often have been developed through discovery, motion submissions, or a trial.

Mediation Timing Part 2 – Commercial, Corporate, Employment

{4:00 minutes to read} In my last blog about timing and mediation, I suggested that in divorce matters, there is a sweet spot of around 90-100 minutes for any single session. You can read that blog here: Part 1. This framework is largely irrelevant to other types of cases, such as:

Commercial;
Corporate;
Employment;
Personal injury.

In non-divorce matters, the parties and especially the attorneys expect to spend a significant amount of time during any one mediation session. There is more shuttle diplomacy, especially early on.

Mediation Timing Part 1 – Divorce Mediation

{3:30 minutes to read} What’s the right amount of time for a mediation? As Goldilocks might put it:

What’s too much
What’s too little
What’s just right?

As in many such matters, it depends. Some parties fade quickly, others are happy to go on for hours and hours, days and days. What works differs from case to case.

Patience – Is it a Virtue? Part 3 – Employment Cases

Employment cases can present difficult problems for the parties, their attorneys, and the mediator. The employee often feels wronged, just like a spouse in a divorce case. The employer may think the employee is improperly seeking money they are not entitled to and concerned that a settlement could generate more litigation from other employees. The employee may have worked for the employer for years with good evaluations; yet the employer may feel the employee has always been difficult to deal with. These can present seemingly intractable problems.

Patience – Is it a Virtue? Part 1 – Divorce/Family

Many factors affect whether a divorce mediation is successful. One factor can be how the mediator and the couple are able to use patience as a tool.

It is often unrealistic to expect patience from the couple. They may walk into the room angry, depressed, afraid, wanting to “get this thing over with,” or even seeking reconciliation. Or one side does. At a minimum, the parties have been unable to resolve whatever conflict caused the need for mediation in the first place. They have already spent time and money, much emotional energy, and experienced no shortage of aggravation.

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