When Sam walked into the mediation conference room, his client Ellen was already there, tapping her fingers nervously on the table. You couldn’t always pick your clients, Sam thought, but Ellen was someone he would represent any day of the week. Normally friendly and upbeat, she had been a hard-working single mom who held two jobs — until she was injured in the accident. Now she spent her days in doctors’ offices, and her family was struggling to make ends meet. Still, Ellen always had a friendly smile and thanked him for representing her.
The case was a big one for Sam, too. This was his first million-dollar case, and he had put a lot of firm resources into it.
The mediation got under way, and initially Sam thought things were going well. Both sides were moving toward a middle ground, and he figured they would be done by mid-afternoon.
But to Sam’s surprise, the parties hit an impasse just after lunch. The defendant had barely moved with the last two offers, and Sam was unsure how he should respond. Ellen’s smile had vanished and she was rubbing her temples. Was the mediation ending in failure? What could he do?
When Negotiations Get Stuck
It happens in just about every negotiation. The parties hit a point where they both have more room, but they feel they are too far apart to ever reach a settlement. Here are 9 things the parties can do when that happens.
1 — Check YOUR facts.
As long as the two sides are evaluating the same case, their valuations usually are within a reasonable range of one another. So when the other side is making offers or demands that seem clearly inappropriate for the case, the first question you want to ask is: why?
Start with your own evaluation of the case. Could you be missing any critical piece of information?
If you feel pretty confident that you have discovered all the pertinent facts, put the question to the other side. Ask them whether you are missing something that you need to be considering.
2 — Check THEIR facts.
Of course, the mismatch could be the other side’s problem; they may be missing or misunderstanding key facts.
One of the reasons the opening conference is so important is that it serves as a fact checker. When both sides present an outline of their arguments, everyone can be sure they are operating under the same basic facts.
When the two sides both write mediation briefs, the mediator also can be a check to ensure the two sides have the same general understanding of the facts.
3 — Enlist the mediator’s help, and give her ammunition.
When the parties hit impasse, a good mediator is just getting started. If you are convinced the other side is being unreasonable, talk to the mediator about why you think that. Give the mediator the ammunition she needs to help the other party reach a more accurate evaluation of the case.
4 — Peg your demands to something specific and concrete.
Whenever possible, base your demands on something concrete, like verdicts in similar cases, verdicts in a particular venue, or a multiple of the hard damages. You will have an easier time getting the other side to move if you can convince them that your demands are reasonable and are based on something other than simply your personal beliefs.
5 — Think outside the box to give the other side reasons to settle.
The other side might have reasons to settle that have nothing to do with dollars and cents. (Of course, so might you.) For example, the defendant may be considering a merger, and may need to put an end to litigation. The plaintiff may be planning an out-of-state move, or may have a specific need for cash.
6 — Take a break.
Sometimes attorneys will tell me they need to take a short break. Good idea! There is absolutely nothing wrong with taking a little time to walk around the building, eat your lunch, or just sit for a few minutes. Don’t be afraid to take the time you need to process the unexpected events at mediation. But …
7 — Keep talking.
Your best shot at ending this litigation is today, right now. If you cut off communication, your chances of settling plummet. So keep going, even when things seem difficult.
8 — Move to another issue.
If you have more than one issue to cover, move to an easier one. Once the parties reach agreement on one matter, it can be easier to get agreement on other, more controversial issues.
9 — Go back to first principles.
Revisit the reasons settlement would be beneficial for you. Why did you come to mediation? Unless you came solely because the court ordered you to be there, you probably elected to go to mediation because you thought settlement — a fair one — would be in the best interests of your client. Use that concept to evaluate the offer or demand on the table: is it fair to my client?
In Sam’s case, he knew that he had the facts of his case down cold, and since he had given a full opening statement, he knew the defendant was aware of the facts, too. He had researched other verdicts in the venue where the case was filed, and he showed his research to the mediator. She took the printouts to the defendant, who reevaluated and started to move again. The case settled that day, and Ellen gave Sam the best paycheck of all — a big hug and a heartfelt “thank you.”