• Advance Resolution: Close the Deal
    The key to a successful mediation is preparation. Counsel should arrive with a solid understanding of key facts and issues, a clear view of the clients’ goals and a proactive settlement strategy. Work with the mediator early to clarify all parties’ objectives, address potential settlement obstacles, identify available resources and pave the way for successful negotiations.  Importantly, attend the mediation ready to close a deal. Confirm Settlement Authority First, confirm settlement authority before arriving at the mediation. Identify the party representatives and, if applicable, insurance professionals who will attend the mediation with appropriate settlement authority. If the approval of an…
  • Advance Resolution: Develop an Action Plan
    Chart a path to a successful mediation. Attend with a solid understanding of key facts and issues and a clear view of the clients’ goals. Work with the mediator in advance to pave the way for productive negotiations by clarifying all parties’ objectives, addressing potential settlement obstacles and identifying available resources.  Further, counsel can gain an advantage over less prepared participants by arriving with an action plan. Consider timing, structure and proactive approaches. By outlining desired outcomes and negotiation strategies, counsel can drive discussions towards a favorable resolution. Start Strong To start, ask your client: What do you want? What…
  • Advance Resolution: Engage the Mediator
    Preparation is key to a successful mediation. Attend with a solid understanding of important facts and issues and a clear view of the clients’ goals.  Counsel can further increase the opportunities to informally resolve the dispute by working with the mediator early to pave the way for productive negotiations. Gain momentum through straightforward goals, streamlined data gathering, simplified problem solving and strategic conferences. Straightforward Goal Setting Encourage the mediator to use the talent and experience of all participating counsel to articulate goals and advance a clear and cost efficient resolution strategy. As a first step, assess if all necessary parties…
  • Advance Resolution: Ready Your Client
    Mediation allows disputing parties an opportunity to minimize risks, generate creative solutions and maintain control over the outcome of the dispute. The key to a successful mediation is preparation. This includes building client trust in advance of the session. Counsel should discuss goals, explore different resolution options and clarify the mediation process with clients in advance. Foster a unified team approach. Align client expectations and objectives to ensure smooth, productive negotiations. Identify Goals The first step is defining the client’s goals. While the aim of most mediations is to negotiate funds, clients may have additional objectives.  Often these goals concern timing.…
  • Advance Resolution: Know Your Case
    Mediation is a valuable alternative to litigation that empowers parties to control the outcome of their disputes while minimizing risks, expanding opportunities and optimizing results. Set the stage for productive negotiations. Counsel can build credibility through a solid grasp of pertinent facts and issues, the inclusion of all necessary players at mediation and a good understanding of the funding or insurance picture.  Verify Your Client’s Role First, verify your client’s role in the dispute.  If a written contract exists, does it accurately describe the parties’ roles in the dispute? For example, in a construction dispute, did your client perform any…
  • Advance Resolution: Your Roadmap to Successful Mediation
    Civil litigation is often expensive, time-consuming and stressful. Mediation is a compelling alternative that empowers parties to control the outcome of their disputes. The key is preparation. Here are the fundamental steps for counsel to advance a productive and successful mediation. Know Your Case. Before entering mediation, it’s essential for counsel to have a solid understanding of the case facts and issues. Verify key information, analyze evidence, involve all necessary parties and understand the insurance landscape before the mediation session. By being thoroughly prepared, counsel can effectively advocate for the clients’ interests and contribute to fruitful negotiations. Ready Your Client.…
  • Gonzalez v. Google LLC
    Today the Supreme Court of the United States heard arguments in the case of Gonzalez v. Google LLC and the internet is nervous. The case revolves around YouTube’s algorithms and whether they should be held liable for their suggested video content. Typically, websites are protected under section 230 of the Communications Decency Act of 1996, though the limits are being tested with greater frequency. Gonzalez aims to hold YouTube’s parent company, Google, responsible for aiding and abetting ISIS in their 2015 Paris attack under the U.S. Anti-Terrorism Act. Various commentators believe that a ruling overturning the lower court’s decision in favor of…
  • Good neighbors: ADR and affordable housing
    Neighborhood conflicts concerning housing, construction, and land use are some of the most contested areas of public life and law.  Disputes can clog city offices and state courts. Solutions through mediation and ADR can clear backlogs, create healthier communities, create jobs and save the state millions of dollars.   The American Bar Association hosted a webinar last week on affordable housing solutions and ADR, particularly in conjunction with community mediation centers. Community Mediation Centers came out of the 1964 Civil Rights Act, when the Community Relations Service was created within the Department of Justice. Originally called Neighborhood Justice Centers, these…
  • Special Masters: the court’s (not so) secret weapon
    “For more than twenty years, responses to questions about my career often drew blank looks, followed by: “What do you do exactly?” Donald Trump changed that. Now, most people seem to understand that a special master is an independent arbiter appointed by the court to support the management and resolution of complex civil cases.” Read the full article here.  
  • Natural disasters compound construction defects
    Torrential rains in Italy this last week triggered landslides on the island of Ischia, Italy. Densely populated and known for its thermal baths, the island also sits in an earthquake zone. Proper construction methods take these environmental factors into account. However, it appears that the race for construction to catch up with population growth may have resulted in corners being cut. Multiple structures were destroyed last weekend in the port city of Casamicciola Terme. Several people are still missing. The fallout from this most recent disaster will require people with different, and perhaps conflicting, goals to come together to create…
  • American Education Week 2022
    November 13th – November 19th is American Education Week and certainly education is something to be celebrated. This year, that celebration includes recognizing how education in America has changed. Schooling of every level, from preschool to post graduate, has been affected by the lasting effects of the Covid 19 pandemic. It will be years before the sum total of these effects on professions that require highly educated talent to operate properly will be fully understood. Even before Covid, law schools saw decreasing numbers of first year students. For many perspective students, the debt load incurred in pursuing a law degree…
  • The Advantages of Virtual ADR
    High emotion cases, such as wrongful death, medical malpractice, or family disputes may be more challenging to negotiate remotely.  I have settled many cases the last two years over the Zoom video conferencing platform, including emotional cases involving highly personal issues, multiparty construction cases, and business disputes. A recent Daily Journal article looks at how virtual mediation has helped address the backlog of probate and trust cases, and how an April 2021 California Court ruling has impacted the mediation landscape. Read the article here.
  • Simplified Problem Solving
    “Anne Goyette is unlike many mediators and arbitrators because she has spent much of her 23 years in the field working as a special master, either appointed by a judge or chosen by parties to take on management of complex litigation to assist the court.” On Friday, October 1 2021, Don DeBenedictis interviewed Anne Lawlor Goyette on handling special cases. View the full article here.
  • Resolutions: A Conversation About Mediation Strategies
    Resolutions · Take 5: A Conversation About Mediation Strategies Resolution: A Podcast About Dispute Resolution and Prevention is a bi-monthly podcast hosted by rotating staff at the American Bar Association. In this episode, Resolution’s newest host, Caroline Stauffer, speaks with Anne Goyette, Arbitrator, Mediator, and principal of Griffiths Goyette about strategic approaches to mediation. This podcast was originally published on the American Bar Association Podcast Hub on Tuesday, July 13, 2021.
  • Take Five
    Litigation can be expensive, time consuming and stress inducing. Covid-19 restrictions are exacerbating these conditions. Mediation is an alternative that empowers litigants,  counsel and insurance professionals to minimize risks, expand options and optimize  outcomes. Rather than relying on the opinions and biases of judges and jurors, prepared  mediation participants gain the opportunity to control and shape the resolution of their  dispute.  Here are five key steps to a productive and successful mediation. Know Your Case  Counsel should develop a solid understanding of the dispute’s pertinent facts and  issues well in advance of mediation. A judicially appointed referee or Special Master …
  • Virtual ADR Relief Zooming In
    Covid-19 has closed businesses, moved school instruction online, delayed surgeries and created suffering and health fears throughout the United States. To say the least, the last two months have been very challenging. With civil trials suspended, Covid-19 also has significantly disrupted civil litigation. It is unclear how civil jury trials will be handled once the stay in place orders are lifted. How will courts address social distancing concerns to safeguard court personnel, attorneys and litigants? Will courts assemble jurors before widespread testing or vaccines are available? Criminal matters, unlawful detainers and preference cases likely will be prioritized. Meanwhile, the backlog of civil cases is growing. Covid-19 related litigation itself is expected to add significantly to the courts’ already heavy caseload. Further continuances of existing court dates are anticipated. More delays and increased litigation costs will follow.
  • Special Masters streamline the dispute resolution process, minimizing the costs, delays and risks of complex cases such as construction defects
    The fire started just above the first floor ceiling. Workers renovating the seven-story historic hotel fled the smoke-filled stairway, stumbling and falling on the way. Aerosol paint cans exploded from the heat, and the fire grew to three alarms. Firefighters blasted the 100-year-old building with water and successfully extinguished the flames. Unfortunately, the hotel suffered extensive damage from the fire, smoke and suppression efforts. Rain later doused the interiors through the open roof and windows. Mold grew. Lead paint flaked and peeled off the walls. The hotel owners performed millions in repairs. They resolved an insurance claim with their carrier and then sued the renovation contractor for remaining fire and breach of contract damages. The general contractor in turn sued the subcontractors suspected of starting the fire and their insurance carriers. Liability was hotly contested. The general placed a lien against the building, served stop notices and sued the hotel group for unpaid contract balances; the subcontractors also sued for sums due. Five actions for personal injuries and subrogation followed. Two years after the initial filing, significant investigation and litigation costs had been incurred. Counsel disagreed on how to address “threshold” legal and factual issues. The parties anticipated taking roughly 70 percipient depositions and filing motions to bifurcate and/or motions for summary adjudication/judgment. The Superior Court consolidated the eight cases, set, and then vacated, a trial date. The Superior Court subsequently appointed a Special Master.
  • Building Settlements in Construction-Defect Cases
    Passing the buck is the usual defense strategy, and a Special Master may be needed to steer these cases towards settlement. Construction-defect cases typically involve large numbers of parties, attorneys, insurance companies and experts. Each player has its own goals. The property owner wants maximum funds to repair defects and cover losses. The builder disputes both plaintiff’s repair scope and associated costs and seeks to pass plaintiff’s claims onto subcontractors. The subcontractors concentrate on minimizing alleged damages and shifting responsibility. The design professionals distinguish between construction errors and design issues. Attorneys challenge pleadings, decipher contracts, pursue claims and assert defenses.…
  • Complex neighbors: Santa Cruz & Santa Clara
    Santa Clara County is the most populated county in the San Francisco Bay Area with close to 1.9 million people. The county is home to cutting edge Silicon Valley and boasts a median household income of $93,854. Santa Clara County Superior Court had 24,576 civil filings in 2013-2014 with roughly 250 complex civil cases. The court’s 2015-2016 fiscal year budget is just over $103 million. In comparison, Santa Cruz County has an estimated population of 272,000. The county is known for beautiful beaches and agriculture and has a median household income of $66,923. In 2013-14, Santa Cruz had 3,562 civil…
  • Effective Settlement Strategies for Construction Defect Cases
    No one starts a war, or rather, no one in his senses ought to do so, without first being clear in his mind what he intends to achieve by that war and how he intends to conduct it. The enemy of a good plan is the dream of a perfect plan. – Karl von Clausewitz (1780-1831) Construction defect cases typically involve large numbers of parties, attorneys, insurance companies and experts. Each player has its own goals. The property owner wants maximum funds to repair defects and cover losses. The builder disputes both plaintiff’s repair scope and associated costs and seeks…
  • Using Special Masters in Santa Clara
    Complex construction defect cases often require a neutral to work with parties during the pretrial phase Litigationa Multiparty construction defect cases often require exceptional judicial management because they involve complex factual and legal issues and include large numbers of parties, attorneys, insurance companies and experts. Litigants frequently retain a referee or special master to work with the complex litigation judge by providing case management, addressing discovery disputes and/or facilitating settlements of these cases. This article is the fifth in a series that analyzes how different Bay Area courts utilize special masters in complex construction defect cases. Santa Clara County Superior…
April 19, 2024
Advance Resolution: Close the Deal

The key to a successful mediation is preparation. Counsel should arrive with a solid understanding of key facts and issues, a clear view of the clients’ goals and a proactive settlement strategy. Work with the mediator early to clarify all parties’ objectives, address potential settlement obstacles, identify available resources and pave the way for successful negotiations.  Importantly, attend the mediation ready to close a deal. Confirm Settlement Authority First, confirm settlement authority before arriving at the mediation. Identify the party representatives and, if applicable, insurance professionals who will attend the mediation with appropriate settlement authority. If the approval of an…

The key to a successful mediation is preparation. Counsel should arrive with a solid understanding of key facts and issues, a clear view of the clients’ goals and a proactive settlement strategy. Work with the mediator early to clarify all parties’ objectives, address potential settlement obstacles, identify available resources and pave the way for successful negotiations. 

Importantly, attend the mediation ready to close a deal.


Confirm Settlement Authority

First, confirm settlement authority before arriving at the mediation. Identify the party representatives and, if applicable, insurance professionals who will attend the mediation with appropriate settlement authority. If the approval of an elected board or another agency is required to finalize a deal, discuss the approval process with the mediator and/ or your opponents before the mediation.

In addition, address any additional issues that may impact the parties’ ability to finalize an agreement. For example, if a key player is bankrupt, a suspended corporation, or a juvenile, take the necessary legal  steps to address the situation and secure authority to close a deal. Perhaps a non-party’s signature is needed to finalize an agreement. 

As to this last point, take a step back and look at potential third parties whose involvement might expand resolution options. For example, three neighboring townhomes had construction defects. Two owners sued the builder, but the third owner wanted nothing to do with the litigation. As mediation approached, counsel realized that the most effective and efficient repair required access to the third townhome. The parties approached the third owner before mediation, worked out a plan with their neighbors and then negotiated a global resolution at mediation based on the preferred repair scope.

Take the necessary steps to ensure that the people seated at the settlement table are the appropriate representatives to finalize an agreement.


Consider Settlement Terms

Second, evaluate potential settlement terms. Prepare a draft settlement agreement before the mediation. Analyze the possible legal and practical impact of clauses that the parties would like in the final document. Will there be a mutual release? Non-disparagement clause? Confidentiality provision? What about payment security or a post settlement arbitration provision? In lieu of a strictly cash settlement, the draft may identify other types of compensation, such as complimentary services, an apology, the write off of money owed or a resignation letter. Take the time to revisit the client’s goals and consider the language of a potential settlement agreement.

Some attorneys prefer not to share a draft agreement before mediation. They believe they gain more leverage by waiting to raise confidentiality or nondisclosure issues until after an agreement in principle is reached. Others prefer to address key provisions from the start and work through any potential roadblocks while negotiating settlement numbers.

Whether counsel decides to share a draft agreement before or after an agreement in principle is reached, bring a draft agreement to the mediation. The document can provide the structure for negotiations and closing discussions. It also may create an efficient opportunity to finalize an agreement while all of the players are in one spot. The defense can close their files quicker, reducing the slow drip of attorney fees incurred in chasing signatures. Plaintiffs can deliver a fully executed settlement agreement and potentially shorten the time until payment.


Sign Sign Sign

Third, if an agreement is reached at mediation, avoid buyer’s remorse. Be prepared to sign a settlement agreement or a Memorandum of Understanding before leaving the mediation. Consider including a term that gives the court jurisdiction to enforce the settlement. At a minimum, ask the mediator to confirm any agreements reached in a written email to all counsel to avoid any later confusion.


Consider Plan B

Finally, if the parties do not reach a resolution, plan your next move. Is there any additional information that will help the parties bridge the gap? Should the parties re-convene after a particular motion ruling or event? Will the parties consider a Mediator’s Proposal? Enlist the mediator to schedule a follow up discussion or check in to see if additional resolution options emerge or the parties’ positions shift. Even if no agreement is reached at mediation, it is fairly common for additional settlement avenues to open after meaningful settlement discussions.


Conclusion

Advanced preparation brings significant value to settlement negotiations and ultimately allows all mediation participants to minimize risks, expand options and optimize the resolution of their client’s civil disputes. Enhance settlement opportunities by arriving at the mediation ready to close a deal.

 

Griffiths • Goyette are Leading ADR Providers Since 1993. Principal Anne M. Lawlor Goyette has streamlined and resolved thousands of civil disputes in California and nationwide as a full time Mediator, Court Appointed Neutral and Arbitrator.

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April 18, 2024
Advance Resolution: Develop an Action Plan

Chart a path to a successful mediation. Attend with a solid understanding of key facts and issues and a clear view of the clients’ goals. Work with the mediator in advance to pave the way for productive negotiations by clarifying all parties’ objectives, addressing potential settlement obstacles and identifying available resources.  Further, counsel can gain an advantage over less prepared participants by arriving with an action plan. Consider timing, structure and proactive approaches. By outlining desired outcomes and negotiation strategies, counsel can drive discussions towards a favorable resolution. Start Strong To start, ask your client: What do you want? What…

Chart a path to a successful mediation. Attend with a solid understanding of key facts and issues and a clear view of the clients’ goals. Work with the mediator in advance to pave the way for productive negotiations by clarifying all parties’ objectives, addressing potential settlement obstacles and identifying available resources. 

Further, counsel can gain an advantage over less prepared participants by arriving with an action plan. Consider timing, structure and proactive approaches. By outlining desired outcomes and negotiation strategies, counsel can drive discussions towards a favorable resolution.


Start Strong

To start, ask your client: What do you want? What are your goals? Continue to discuss objectives with your client as the matter proceeds. Mounting costs, other commitments and the stress of litigation can moderate the views of even the most aggressive or irate client. 

With an understanding of the client’s goals, develop a range of acceptable outcomes before mediation. Analyze factors that may impact the discussions, such as key facts and legal issues, similar deals, any previous experience with counsel or principals, a fast approaching trial date, anticipated delays, need for confidentiality, political elections and so on. Realistically, in what range do you think the parties will reach a settlement? Also, review alternatives to a brokered deal before mediation. What happens if the case does not settle? Assess the point at which the client is uninterested in making a deal. 

Then, looking at all of these factors, explore an opening position. Plot a course that will allow you to strategically move from offer to offer/demand to demand towards an acceptable endgame. Anchor the negotiations to set the parameters of the negotiations. The first demand and first offer basically set the high and low limits of the discussions. Ideally, your opening position is defensible and leaves room for negotiation. An unrealistic demand or offer can alienate the recipient and end the negotiations – or at least push the parties into expensive and perhaps unnecessary discovery and litigation. 

Consider the best timing for service of the initial settlement demand or offer. In cases involving business or insured claims, a demand generally should be served four to six weeks in advance of the mediation to allow counsel sufficient time to obtain appropriate authority from their client or insurance carrier. Having received a demand, counsel in an emotionally charged personal injury or wrongful death case may opt to withhold an offer until the plaintiff has had an opportunity to share her story. 


Be Proactive

Give some thought as to how you will move from offer to offer or demand to demand, so that you are not completely reactive in settlement negotiations. Take time before mediation to privately define the outcome you hope to achieve and outline a basic negotiation strategy. 

Counsel might consider anchoring with either a settlement demand or an offer backed by an explanation of damages, and then make moderate, measured moves until the opponent reaches a certain threshold. Alternatively, counsel might begin with aggressive moves and then signal an end point with smaller and smaller steps. Maybe counsel plans her moves based on past negotiations with her opponent.

Sometimes, the traditional practice of demand/offer, demand/offer loses momentum, leaving each side unclear as to the other side’s settlement range – despite hours of negotiation. Counsel’s strategy could include the use of settlement brackets if the parties are not within a particular range after a certain number of exchanges. 

Bracketing is a technique that allows negotiators to communicate their settlement ranges while maintaining their formal settlement positions. The proposing party can show it is willing to advance the discussion, perhaps with a significantly large move, if the other side reciprocates. If the bracket is rejected, neither party has compromised its “formal” settlement position. If the bracket is accepted, the bracket numbers become “real numbers.” The goal is to narrow the range of the negotiations and bring the parties closer to a final number.

For example, the plaintiff offers to reduce his demand to $ 2 million if defense raises the offer to $ 1 million. The defendant can accept the proposed bracket or reject the bracket and request a firm demand, simply make a firm offer or counter with a different bracket (e.g. – if plaintiff goes to $ 1.5 million, defendant will go to $ 500,000.) Regardless, the plaintiff is signaling that he is prepared to resolve the matter somewhere between $ 1 million and $ 2 million. 

Brackets are one example of conditional offers designed to keep the parties talking and avoid impasse. Another type of conditional offer involves tying your settlement position to a specific contribution by another party. For example, a defendant may agree to offer $ 100,000 if a co-defendant agrees to match his contribution. Or the lead defendant may offer to contribute 20% of a global settlement up to a specific sum if the remaining parties fund the difference. Or the plaintiff may issue individual demands to numerous parties that are contingent on a global resolution. Like brackets, these types of conditional offers are tools to advance productive discussions.

When preparing for mediation, privately inventory possible tools to further settlement efforts if negotiations hit an impasse. Would an Offer of Judgment add credibility to a party’s position and encourage settlement? What about a Mediator’s Proposal? 


Build Coalitions

In multiple party negotiations, ask: ”What do the parties want? Who can we team up with to further productive negotiation to our benefit?” Parties with common interests can increase their influence by joining forces with other parties who, at least for the time being, share similar goals and interests. Individuals negotiating as part of a single, large group may gain more leverage in the discussions and secure a more beneficial deal for the coalition members. 

Through joint defense agreements, parties also can reduce costs by coordinating strategy and sharing information. These agreements allow the parties to share otherwise confidential information or work product without waiving applicable protections. That said, before entering into a joint defense agreement, research how the courts in the applicable jurisdiction view joint defense agreements – especially any impact on privilege protections and conflict of interest concerns. At a minimum, the joint defense agreement should disclaim any attorney-client relationship between an attorney and any signatory to the agreement other than the attorney’s specifically named client.

An effective negotiation strategy in multiple party disputes considers both the benefits of joining a coalition and the potential dangers of being excluded from a coalition.


Sequence Negotiations

A global settlement in a multiple party dispute involves a series of smaller settlements with individual parties and coalitions. Conquer the chaos of multiple party negotiations by developing an early action plan for sequencing the discussions. 

In MDL litigation, counsel may want to start negotiations with a focus on resolving the claims that present the most exposure or maybe those that present the least. Perhaps pursuing inventory settlements with individual firms or the resolution of a specific category of injury would be more productive.

In individual cases with multiple parties, peripheral parties often want to know: Can I get out early? Do I have to go all the way through discovery and motions even though my client only played a very minor role in the dispute? Is there an early exit strategy? The plaintiff may agree to settle with either a particular individual, parties involved in a discrete issue or around a “problem” player. Conversely, the plaintiff may be set on a global agreement. 

In construction defect cases, the general contractor or developer typically  takes the lead in sequencing settlement discussions.

One approach to sequencing is to “Pay and Chase.” Here, the lead defense reaches a settlement with the plaintiff and then, with damages capped, confidently issues realistic demands to the remaining parties to fund a global deal. This approach can preserve an ongoing business or personal relationship between the lead parties. It can minimize costs and exposures and may be especially productive in a dispute with underinsured or funded parties. The downside with this approach is lead defense takes on the risk of having to fund a large share of the final settlement. For instance, once the plaintiff settles out, the remaining parties may view the lead defense as a less threatening claimant and lower their settlement evaluations.

A more popular approach is for the lead defense to focus first on raising money before making a global offer. The lead defendant may divide the other defense parties into groups. She then negotiates first with the more liable parties and then moves to the less liable parties. Or vice versa. She may focus on parties involved with one claim or a series of related claims that potentially could be settled separately from the rest of the group. Negotiating first with defense parties benefits the lead counsel by providing a solid understanding of available funding and allows counsel to approach the plaintiff with funds already secured. On the downside, these sequenced negotiations tend to be very time consuming. As talks continue, costs soar. The additional expense and delay can diminish any good will between the lead parties. At some point, once the lead defense has a better understanding of the final settlement range, he may cut deals with particular groups or individual parties. These parties may be more willing to put their best dollar on the table in exchange for an early dismissal. As defense parties begin leaving the case, previously recalcitrant parties often become much more interested in pursuing a settlement.


Conclusion

The most important lesson here is this: Execute an Action Plan. Effective negotiation strategies that benefit your client require you to start early, be proactive and, in multiparty cases, consider building coalitions and strategically sequencing negotiations.

 

Griffiths • Goyette are Leading ADR Providers Since 1993. Principal Anne M. Lawlor Goyette has streamlined and resolved thousands of civil disputes in California and nationwide as a full time Mediator, Court Appointed Neutral and Arbitrator.

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April 17, 2024
Advance Resolution: Engage the Mediator

Preparation is key to a successful mediation. Attend with a solid understanding of important facts and issues and a clear view of the clients’ goals.  Counsel can further increase the opportunities to informally resolve the dispute by working with the mediator early to pave the way for productive negotiations. Gain momentum through straightforward goals, streamlined data gathering, simplified problem solving and strategic conferences. Straightforward Goal Setting Encourage the mediator to use the talent and experience of all participating counsel to articulate goals and advance a clear and cost efficient resolution strategy. As a first step, assess if all necessary parties…

Preparation is key to a successful mediation. Attend with a solid understanding of important facts and issues and a clear view of the clients’ goals. 

Counsel can further increase the opportunities to informally resolve the dispute by working with the mediator early to pave the way for productive negotiations. Gain momentum through straightforward goals, streamlined data gathering, simplified problem solving and strategic conferences.


Straightforward Goal Setting

Encourage the mediator to use the talent and experience of all participating counsel to articulate goals and advance a clear and cost efficient resolution strategy. As a first step, assess if all necessary parties are at the table. Who will attend the mediation session? If applicable, what is the status of any insurance tenders? Are there any other relevant disputes pending? If so, will these be included in the settlement discussions? If a relevant dispute is not addressed, what impact will its exclusion have on settlement efforts?

In a multiple party case, is the plaintiff seeking a global resolution, or will he consider individual or small group settlements?

Ascertain if any additional information is needed for meaningful settlement discussions. For instance, will an accounting or real estate appraisal allow the parties to confidentially discuss damages? Have the parties produced sufficient backup documentation to support their claims and defenses? 

How much time do the parties reasonably need to prepare for meaningful settlement discussions? Is there an anticipated delay in securing or analyzing any necessary information? Determine if there is any event or deadline that may impact productive discussions, such as an upcoming summary judgment motion, potential real estate sale or fast approaching trial date. Adjust the timing of the mediation accordingly.

Identify an appropriate venue for the mediation. Perhaps an in person session is appropriate to resolve a large inventory of claims or manage a difficult, unfocused or emotional client. On the other hand, a remote mediation may be the ideal set up for a purely commercial dispute or a large construction dispute. 


Streamlined Data Gathering

Engage the mediator to assist with prioritizing and streamlining the production of key information. Litigation or arbitration preparation aside, what information do the parties need specifically for productive negotiations? If discovery is voluminous, will the parties agree to deposit relevant information at a single location without formal discovery?

Perhaps the parties will select a handful of depositions to explore narrowly defined issues.

If a key defendant claims that he has no assets to fund a settlement, is his verified declaration sufficient support to engage the players in settlement talks? Perhaps an informal meeting to review his financial documents and ask questions will address any concerns before mediation. Will the parties stipulate to the production of confidential documents under a protective order?


Simplified Problem Solving

The right experts clarify claims, defenses, risks and resolution options in disputes involving technical,  scientific, or other complex issues. Work with the mediator to define the experts’ most effective role in the mediation process.

Before mediation, counsel may allow their consultants to share their data and views with other consultants, with or without attorney involvement. Fairly candid expert exchanges frequently occur under the mediation privilege and before any formal expert disclosures and depositions. In construction cases, experts often analyze different repair scopes to bridge the gaps in the parties’ positions. 

In some cases, parties jointly retain a neutral expert. An objective, reliable appraisal, for instance, can be the catalyst to close a real property dispute. A respected professor’s geotechnical review may break the logjam regarding the cause of extensive cracking throughout a shopping center. A jointly retained financial expert can untangle complicated financial arrangements. 

Alternatively, the parties may opt to share individual expert reports solely with the mediator. As an example, expert summaries of treating physicians’ reports in medical product cases can be tremendously helpful to the mediator in preparing for productive negotiations. 

During a mediation, experts can effectively highlight the strengths and weaknesses of the parties’ positions, generate options, clarify areas of agreement, narrow areas of disagreement and provide the decision makers with a preview of the witnesses’ effectiveness at trial. Individuals who previously dismissed legal theories may sit up and pay attention to an objective, scientific explanation of events. Parties may realize that the jury likely will miss important technical nuances or overlook sound science and instead decide a case based on personal bias or incorrect assumptions. Any of these scenarios can generate productive settlement discussions.


Strategic Conferencing

Engage the mediator to conduct strategic one-on-one conferences with each party or small groups before mediation. These conferences may involve just the attorneys or any combination of attorneys, insurance professionals, coverage counsel, expert consultants and/or principals. 

The conferences allow the participants to privately discuss their specific goals, identify obstacles and explore resources in preparation for  productive negotiations. Participants can raise concerns about unrealistic client expectations or difficult personalities, highlight the potential impact of a personal message or apology, flag  emotional triggers, identify insurance or funding problems and explore available resources for resolution. The mediator and counsel can strategize on an effective approach to address these issues, avoid emotional outbursts and pave a path to productive dialogue at mediation.  


Conclusion

As you prepare for mediation, gain momentum by engaging the mediator early to execute clear and purposeful action and effectively advance dispute resolution

 

Griffiths • Goyette are Leading ADR Providers Since 1993. Principal Anne M. Lawlor Goyette has streamlined and resolved thousands of civil disputes in California and nationwide as a full time Mediator, Court Appointed Neutral and Arbitrator.

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April 16, 2024
Advance Resolution: Ready Your Client

Mediation allows disputing parties an opportunity to minimize risks, generate creative solutions and maintain control over the outcome of the dispute. The key to a successful mediation is preparation. This includes building client trust in advance of the session. Counsel should discuss goals, explore different resolution options and clarify the mediation process with clients in advance. Foster a unified team approach. Align client expectations and objectives to ensure smooth, productive negotiations. Identify Goals The first step is defining the client’s goals. While the aim of most mediations is to negotiate funds, clients may have additional objectives.  Often these goals concern timing.…

Mediation allows disputing parties an opportunity to minimize risks, generate creative solutions and maintain control over the outcome of the dispute. The key to a successful mediation is preparation. This includes building client trust in advance of the session. Counsel should discuss goals, explore different resolution options and clarify the mediation process with clients in advance. Foster a unified team approach. Align client expectations and objectives to ensure smooth, productive negotiations.


Identify Goals

The first step is defining the client’s goals. While the aim of most mediations is to negotiate funds, clients may have additional objectives. 

Often these goals concern timing. For instance, there may be advantages to scheduling the resolution around a particular event. Perhaps the client is hoping to pursue a lucrative business opportunity but can only do so if the dispute is resolved by a certain date. In some cases, a ruling on a pending motion or trial in a separate lawsuit can strengthen or diminish a client’s position. Is there an ongoing personal or business relationship that the parties want to preserve with a fast resolution? 

Other goals may include emotional recognition through an oral or written apology, a published retraction or even a commemorative plaque. Alternatively, the client may want a specific course of action, like the removal of a neighbor’s solar panel or access to a favorite hiking path. 

Continue to discuss objectives with your clients as the case proceeds. Mounting costs, other commitments and the stress of litigation may moderate even the most aggressive or irate client’s goals.  


Explore the Best Alternatives to a Negotiated Agreement

To develop an effective strategy, explore alternatives to a negotiated agreement by asking: What happens if the case does not settle?

  • Will your client lose an important business opportunity or irreparably damage an important relationship?
  • Will the litigation accelerate? Will the participants name new parties, vigorously conduct discovery, file dispositive motions? 
  • Will your opponent pursue a published court decision to create a precedent or generate publicity of the dispute?
  • Will the parties try to engage other influencers in the dialogue? 
  • If the case goes to trial, rather than ending a dispute, will a verdict likely result in post trial motions and lengthy appeals? 
  • Will the victor at trial actually be able to recoup any costs or collect on a judgment? 

Gain a reasonable view of case settlement value and potential walk away range by evaluating possible outcomes if the dispute does not settle at mediation. 

Also consider your opponent’s goals as well as their options if the dispute does not settle: What is their best day? What is their worst day?


Clarify the Mediation Process

While most lawyers have participated in mediation, clients may be unfamiliar with the process. Explain mediation protections and structure in advance to increase the client’s confidence and further productive negotiations.

Confidentiality Protections

Confidentiality is an important component of mediation. Generally, documents prepared for mediation and oral communications during mediation are protected from disclosure in other judicial proceedings. The purpose of confidentiality protection is to encourage meaningful settlement discussions. Confidentiality prompts the parties to put their cards on the table and resolve their dispute by themselves, without formal litigation. 

Confidentiality protections vary from jurisdiction to jurisdiction. Discuss statutory and contractual confidentiality protections applicable to your negotiations with your client. 

Joint and Separate Sessions

Traditionally, mediations begin with a joint session in which the mediator introduces  the participants and discusses the rules and any agreements concerning the mediation. If the parties elect to give opening statements in the joint session, it is important to manage your client’s expectations. Explain, in advance, that each side will present its best case scenario and will aggressively focus on strengths and minimize any weaknesses. 

Today, many parties opt out of opening statements to avoid the possibility of igniting emotions, thereby further alienating the parties and complicating settlement efforts. Others see opening statements as a golden opportunity for the counsel or client to directly connect with decision makers. 

After the opening session, the parties usually move into separate rooms to privately explore settlement opportunities. The mediator may bring the parties and/or the attorneys together again for further joint negotiations or to finalize any settlement agreement. 

In Person and Remote Locations

Mediations held in person at an office or other facility allow the participants to interact informally. The parties can read body language, look each other directly in the eye, express empathy with a pat on the back and seal a settlement with a handshake. The in person setting also can inspire an indecisive client to become more focused and engaged in the process. Furthermore, a decision maker who invests the time, money and energy to travel to a distant mediation often gains credibility and demonstrates that she is serious about trying to reach a deal. 

Many mediators started hosting mediation over video conferencing platforms during the COVID-19 pandemic. The Zoom video platform is easy to use and a simple way to navigate these sessions. All participants need is a strong and secure Wi-Fi connection, a computer with a camera, the Zoom app, and some basic instruction to gain confidence in the process. The mediator guides participants through virtual rooms and advances settlements through confidential negotiations. 

While virtual sessions are not perfect substitutes for in person negotiations or hearings, there are benefits to the technology. First, remote meetings significantly reduce travel costs and time commitments. This makes it easier to schedule meetings and include all decision makers. Also, while participants cannot physically approach others, they can simultaneously see each other’s reactions onscreen and often directly address arguments to principal decision makers.

High emotion cases, such as wrongful death and medical malpractice cases, may be more challenging to negotiate remotely. Business and commercial cases may be more suitable for remote resolution. Walk through the options and talk to your mediator regarding her experience in resolving cases through virtual mediation.

Virtual ADR Relief Zooming In


Conclusion

Prepare for mediation by building your client’s trust through open and consistent communication. Clarify goals. Explore the alternatives to a brokered settlement. Demystify the mediation process. A team approach enhances meaningful settlement discussions and increases the likelihood of a favorable outcome.

 

Griffiths • Goyette are Leading ADR Providers Since 1993. Principal Anne M. Lawlor Goyette has streamlined and resolved thousands of civil disputes in California and nationwide as a full time Mediator, Court Appointed Neutral and Arbitrator.

 

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April 15, 2024
Advance Resolution: Know Your Case

Mediation is a valuable alternative to litigation that empowers parties to control the outcome of their disputes while minimizing risks, expanding opportunities and optimizing results. Set the stage for productive negotiations. Counsel can build credibility through a solid grasp of pertinent facts and issues, the inclusion of all necessary players at mediation and a good understanding of the funding or insurance picture.  Verify Your Client’s Role First, verify your client’s role in the dispute.  If a written contract exists, does it accurately describe the parties’ roles in the dispute? For example, in a construction dispute, did your client perform any…

Mediation is a valuable alternative to litigation that empowers parties to control the outcome of their disputes while minimizing risks, expanding opportunities and optimizing results. Set the stage for productive negotiations. Counsel can build credibility through a solid grasp of pertinent facts and issues, the inclusion of all necessary players at mediation and a good understanding of the funding or insurance picture. 


Verify Your Client’s Role

First, verify your client’s role in the dispute. 

If a written contract exists, does it accurately describe the parties’ roles in the dispute? For example, in a construction dispute, did your client perform any additional work beyond the contract scope? Will you be able to position your client as a peripheral party or do you need a different strategy to address more significant liability exposure? An attorney representing a drywaller in a water infiltration case, for instance, likely will approach negotiations from a different angle than the attorney who represents the window installer. Avoid learning during mediation that your drywaller client actually installed the windows. 

In a commercial lease dispute, did your client make all payments? If not, why?

If a client is seeking support payments in a domestic partnership split, what is the client’s marital status? Discovering your client’s “secret marriage” during the mediation can complicate negotiations. 

Navigate discussions with clarity and confidence. Verify your client’s role in the dispute before negotiations begin. Otherwise, your opponent’s production of evidence countering the client’s position at mediation can hurt your credibility and potentially damage the settlement value of your case. 


Analyze Key Evidence

Second, familiarize yourself with relevant key evidence. 

In a medical product or personal injury case, this may include reviewing the medical records of the treating physicians to confirm that the treating doctors’ diagnoses line up. Determine whether your client has previous similar injuries, surgeries, treatments, or diagnoses. What is the potential impact of any pre-existing medical conditions on the negotiations? Are there significant medical liens? Will an Independent Medical Examination advance settlement discussions? 

In commercial disputes, review contract documents. Analyze the impact of  indemnity, attorney fee, force majeure, insurance requirements and other relevant  clauses. 

After evaluating key evidence, include pertinent documents or relevant portions of documents in the mediation brief. 


Avoid the “Empty Chair”

One misstep that can derail mediation efforts is failing to involve all necessary parties. The absence of a key participant can create gaps in discussions and lead to disputes over responsibility and contribution. 

Determine if there are other potentially liable parties. If so, do the claims merit expanding the dispute to include them in the discussions? 

Along this line, evaluate the viability of the parties. Are they still in business? In a commercial dispute, confirm that the correct partnership, limited liability company, corporation or other business entities are involved. Do the parties have adequate resources to contribute towards a settlement, pursue a claim all the way to trial or pay a judgment?

Bring any additional parties into the discussions as soon as possible. Avoid the equivalent of an “empty chair” at mediation where parties push the responsibility off to a missing party or refuse to make meaningful offers until they know how many parties will be contributing. 

Finally, are there third parties whose assistance is needed to prove your case or effectuate a reasonable settlement? For example, to effectuate a compromise repair, experts may want to install piezometers on a neighbor’s property in a landslide dispute or access a third party’s shared wall in a construction defect case. Develop an action plan on how to approach and involve any third party before the mediation.


Understand the Insurance Picture

In many disputes, insurance coverage plays a pivotal role in determining settlement outcomes. Familiarize yourself with the insurance picture early to anticipate potential hurdles and devise strategic approaches to overcome them. 

Request applicable insurance information and identify the defending carriers. Know who you are dealing with, including the insurance companies who will potentially fund any settlement. It is not unusual for a single carrier to defend multiple parties in a complex case, a scenario that may impact settlement dynamics. 

Once the relevant records are gathered, analyze potential coverage issues. 

Large disputes often involve time on risk disagreements, exhaustion questions, self-insured retention, consent provisions and other issues that influence negotiations. To prepare for such complications, consider retaining coverage counsel when the stakes are high or insurance coverage is uncertain. Don’t leave the coverage questions entirely to the litigation side of the case.

That said, be strategic. If a case has not been filed or insurance disclosures are not required, weigh the pros and cons of sharing coverage details. Perhaps the policy limits are inadequate and disclosure will motivate the parties to reach a quick resolution. Or perhaps the coverage is extensive and there is concern that disclosure will artificially inflate the settlement demand. 

The message here is this: Understand the insurance picture. You may not resolve the myriad of insurance issues before mediation. However, having identified the issues and engaged the decision makers, you can factor this information into case value determinations and settlement strategies. Perhaps a policy limits demand is needed to optimize settlement funds from a burning insurance policy in a high exposure case. Or a coverage exclusion creates an unacceptable “bet the business” risk for a struggling business that supports early mediation. Or maybe the primary limits are inadequate and excess carriers must be included in any meaningful settlement discussions. A proactive approach to understanding the insurance landscape enables the parties and their insurance carriers to optimize settlement outcomes and mitigate risks effectively.


Conclusion

As you prepare for mediation, remember that credibility is currency. By diligently verifying your client’s role, analyzing key evidence, ensuring the presence of all relevant parties and understanding applicable insurance coverage, you lay the groundwork for successful negotiations. Each step in the process is a building block towards advancing your client’s objectives and fostering meaningful settlement discussions.

 

Griffiths • Goyette are Leading ADR Providers Since 1993. Principal Anne M. Lawlor Goyette has streamlined and resolved thousands of civil disputes in California and nationwide as a full time Mediator, Court Appointed Neutral and Arbitrator.

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April 1, 2024
Advance Resolution: Your Roadmap to Successful Mediation

Civil litigation is often expensive, time-consuming and stressful. Mediation is a compelling alternative that empowers parties to control the outcome of their disputes. The key is preparation. Here are the fundamental steps for counsel to advance a productive and successful mediation. Know Your Case. Before entering mediation, it’s essential for counsel to have a solid understanding of the case facts and issues. Verify key information, analyze evidence, involve all necessary parties and understand the insurance landscape before the mediation session. By being thoroughly prepared, counsel can effectively advocate for the clients’ interests and contribute to fruitful negotiations. Ready Your Client.…

Civil litigation is often expensive, time-consuming and stressful. Mediation is a compelling alternative that empowers parties to control the outcome of their disputes. The key is preparation.

Here are the fundamental steps for counsel to advance a productive and successful mediation.

  1. Know Your Case. Before entering mediation, it’s essential for counsel to have a solid understanding of the case facts and issues. Verify key information, analyze evidence, involve all necessary parties and understand the insurance landscape before the mediation session. By being thoroughly prepared, counsel can effectively advocate for the clients’ interests and contribute to fruitful negotiations.
  2. Ready Your Client. Effective communication and preparation are important to ensuring that clients are ready for the mediation process. Counsel should connect with their clients early to identify goals, explore alternatives to negotiated agreements and explain the mediation process. Aligning client expectations and objectives allows smoother negotiations and increases the likelihood of a favorable outcome.
  3. Engage the Mediator. The mediator plays a crucial role in facilitating communication, addressing obstacles and guiding parties towards resolution. By collaborating with the mediator early, counsel can execute clear and purposeful action including straightforward goal setting, streamlined data gathering, simplified problem solving and strategic conferencing. This ultimately paves the way for successful negotiations.
  4. Develop an Action Plan. A well-defined settlement strategy is vital for maximizing success in mediation. Parties should consider timing, structure, and proactive approaches towards negotiation in advance. By outlining desired outcomes and negotiation strategies, parties can drive discussions towards a favorable resolution.
  5. Close the Deal. Consider potential settlement terms and identify possible roadblocks in advance of mediation. Make certain that participants are decision-makers with full settlement authority. Arrive at mediation prepared to close the deal. Whenever possible, document and sign any agreement reached at mediation; if a global resolution is not reached, explore options for further negotiations.

In conclusion, successful mediation requires careful preparation, effective communication and strategic engagement. Counsel who follow the listed guidelines bring significant value to settlement discussions and ultimately minimize risks, expand options and optimize the resolution of their client’s disputes. 

 

Griffiths • Goyette are Leading ADR Providers Since 1993. Principal Anne M. Lawlor Goyette has streamlined and resolved thousands of civil disputes in California and nationwide as a full time Mediator, Court Appointed Neutral and Arbitrator.

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