August 27, 2013

How to Get the Other Side to Play Ball

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Although opposing parties in litigation have competing perspectives, they have a shared interest in reaching settlement.  For this reason, you may find yourself framing a case differently for mediation than than you would for trial.  When strategizing your approach in mediation, it's important that you understand what your opponent's decision-makers need to encourage them to negotiate. Let's look at two categories of decision-makers:

1. Corporations, governmental agencies and insurance companies

Institutional decision-makers often have different levels of decision-making that require substantial pre-mediation discussions. The earlier you provide information regarding case value, the better prepared they will be to mediate.  If the claim is covered by insurance, become familiar with the defendant's applicable insurance policies.  Give sufficient information to your opposing counsel to ensure  that the carrier sets an adequate reserve for the case.

2.  Individuals

Both plaintiffs and defendants can feel strong emotions that prevent meaningful settlement discussions. In mediation, consider focusing on certain aspects of the case that motivate settlement, while avoiding aspects that inflame emotions.  For example, focusing on third party testimony that supports your client's case is often more persuasive to the other side than your client's own testimony.  This phenomenon, called reactive devaluation, occurs because one side devalues information coming from their opponent, but is more open to receiving the same information from a third party.

The more you understand your opponent's decision-makers, the better able you will be to present a case that encourages them to settle.

Filed Under: Mediation

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