Snippets
Notes on negotiation, settlement & mediation.
- 01
How do you prepare for settlement discussions?
How do you prepare for settlement discussions? With over 90% of cases settling before trial, we would expect litigators to place substantial emphasis on settlement preparation.
- 02
Mediation is human-focused.
When people decide to engage in litigation, much of the human component of dispute resolution is lost. Unlike litigation, mediation is human-focused. It’s subjective. Its aim is to achieve preferential outcomes and to satisfy the interests of the individuals involved. In mediation, parties may use the law as much or as little as desired. Litigation is focused on establishing facts and applying the law to those facts. If it works as intended, litigation removes much of the human component to achieve a more objective resolution – something that others in a similar situation can rely on later. There’s a place for mediation and litigation (and a combination of both). Often, though, you get to choose your path. Which do you prefer?
- 03
What will you do if you don’t strike a deal at mediation?
What will you do if you don’t strike a deal at mediation? The common, and most obvious, answer to this question is, “we’ll just take the case to trial.” Seems simple enough. But, if trial is your Plan B should you not strike a deal, a full understanding of the costs and potential benefits of trial (for all sides) must be achieved. Without that understanding, the line between striking a deal and walking away will remain arbitrary, and options for resolution will be restricted.
- 04
What would you rather be doing?
What would you rather be doing? This is a fair question to ask litigants, or anyone engaged in conflict, to consider. At our core, we are all generally the same. We have hopes and visions of how we would like things to turn out. I've yet to meet a person whose purpose is to enter into legal conflicts. That being the case, litigants and their lawyers should frequently assess whether continued legal conflict promotes, rather than erodes, a company's or a person's vision.
- 05
If the deal is good, but no deal is struck, what’s going on?
In mediation, it’s not uncommon for an all-around good deal to be rejected. The mediator sees the value of the deal; the lawyers see it too. But the parties can’t seem to agree on a final resolution. If the proposed deal is good, but no deal is struck, what’s going on?
- 06
Ensuring a meaningful mediation begins with the structure of mediation itself.
Ensuring a meaningful mediation begins with the structure of mediation itself.