This blog is devoted to a discussion on alternative dispute resolution in Florida. The focus is arbitration and mediation of legal disputes.
Tuesday, May 12, 2009
Whether to negotiate settlement before mediation
The first topic to discuss are the reasons for and against attempting to negotiate a settlement before mediation. There are many schools of thought on this topic. Please post your thoughts for our discussion.
There are pros and cons for negotiating a settlement before mediation. On the one hand, the client may save itself a significant amount of fees and costs if a settlement can be achieved before mediation. Another benefit is closing the gap between the parties prior to mediation. On the other hand, if the other party is not receptive to negotiating before mediation, it is very difficult to retract any settlement offers conveyed prior to mediation. The opposing party and the mediator will assume that the party who made the pre-mediation offer is willing to renew that offer at mediation and negotiate beyond that point.
Do you think it is a case-by-case analysis as to whether or not negotiating before mediation is best? It seems that proceeding to mediation before negotiations is still a win-win situation because you are attempting to resolve the dispute before trial, which still saves the client a substantial amount of fees and costs. Great topic.
You are correct. For the most part, it is a case-by-case analysis. I have had several cases that were ripe to settle before mediation and most of the time they did settle. I have also had cases that had no chance of settling without a mediator's assistance.
The factors for the analysis include the complexity of the case, the weaknesses and strengths of the party's positions and the personalities/risk tolerances of the parties and their counsel. The decision whether to negotiate before mediation is a true judgment call and not a rule of thumb.
3 comments:
There are pros and cons for negotiating a settlement before mediation. On the one hand, the client may save itself a significant amount of fees and costs if a settlement can be achieved before mediation. Another benefit is closing the gap between the parties prior to mediation. On the other hand, if the other party is not receptive to negotiating before mediation, it is very difficult to retract any settlement offers conveyed prior to mediation. The opposing party and the mediator will assume that the party who made the pre-mediation offer is willing to renew that offer at mediation and negotiate beyond that point.
Do you think it is a case-by-case analysis as to whether or not negotiating before mediation is best? It seems that proceeding to mediation before negotiations is still a win-win situation because you are attempting to resolve the dispute before trial, which still saves the client a substantial amount of fees and costs. Great topic.
Kelley:
You are correct. For the most part, it is a case-by-case analysis. I have had several cases that were ripe to settle before mediation and most of the time they did settle. I have also had cases that had no chance of settling without a mediator's assistance.
The factors for the analysis include the complexity of the case, the weaknesses and strengths of the party's positions and the personalities/risk tolerances of the parties and their counsel. The decision whether to negotiate before mediation is a true judgment call and not a rule of thumb.
Gary
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