Mediation and Settlement Negotiations
Mediation is a form of alternative dispute resolution. A mediator is an objective person that is not necessarily an attorney who attempts to help the parties reach an amicable resolution, so that a trial is not necessary. Mediation is now required by statute in many cases. There are differing views among attorneys as to whether or not the attorneys should participate in the mediation process. Whether we will be present with you at mediation is something that should be decided after a full discussion with the client. However, the ultimate decision as to whether we will appear with you at the mediation is yours. Keep in mind, that the only way mediation works is if both parties are willing to give. I have appeared at a number of mediation sessions when the other side takes a position and is unwilling to negotiate or give on any issue. This is clearly a waste of everyone’s time and money. In those cases, the attorney should have advised in advance of the client’s unwillingness (unreasonableness) in advance to have at least reduces the costs to everyone. Indeed, in one case, I was advised by a very experienced mediator that the other side was acting in “bad faith”. However, there is no recourse for such tactics. It is unfortunate as the mediator and the lawyers get paid but the party acting in good faith is not reimbursed and has no recourse.
In many cases, a settlement or resolution can be reached either through mediation or the attorneys’ negotiations. The attorneys can certainly attempt to provide offers of settlement in order to reduce certain issues or the entire case. The likelihood of a settlement is base on many factors including the emotional and mental stability of the parties. There are cases that should settle but on parties emotional (anger, resentment, etc.) or mental states (personality disorders, etc.) or such that it makes it very difficult to reach an amicable resolution.
Each case depends on its own facts and circumstances. Prior to beginning the negotiations or mediation process, it is important to fully and completely review your case, the strengths and weaknesses, and then determine your bottom lines.
In many cases, a settlement or resolution can be reached either through mediation or the attorneys’ negotiations. The attorneys can certainly attempt to provide offers of settlement in order to reduce certain issues or the entire case. The likelihood of a settlement is base on many factors including the emotional and mental stability of the parties. There are cases that should settle but on parties emotional (anger, resentment, etc.) or mental states (personality disorders, etc.) or such that it makes it very difficult to reach an amicable resolution.
Each case depends on its own facts and circumstances. Prior to beginning the negotiations or mediation process, it is important to fully and completely review your case, the strengths and weaknesses, and then determine your bottom lines.
