A surprising number of attorneys and clients begin commercial mediation without having fully prepared beforehand. Consider a few essential exercises before you draft your mediation summary and sit down at the mediation table:
Thoroughly evaluate your needs, interests, and objectives. What is your “best alternative to a mediated agreement” or BATMA? If you are already in litigation, this undoubtedly means calculating your likely result at trial. What are the strengths and weaknesses of your case? Are there published verdicts, past experiences, or other benchmarks that might help you determine value? What is the likelihood of success (percentage chance of success) before a judge or jury? Your percentage chance of success times the likely verdict equals at least a beginning settlement number to consider. Might a decision tree help you better analyze your case? At what number will you walk away from mediation, mindful of the cardinal rule that “no deal is better than a bad deal”? What will your demand or offer be? Often setting your goal or sights higher yields a better return than you might expect.
Determine what is at stake. Is this all about the money or perhaps there are non-monetary interests of value at stake? For example, a desired outcome might be a repaired business or other relationship, the promise of future business, a payment plan that might keep cash flowing in an economic downturn, or an apology to salve a bruised ego.
Repeat the evaluation of needs, interests, and objectives from your adversary’s point of view. What is the opposing litigant’s BATMA? What are her strengths and weaknesses? What is her walk away number? Plotting the BATMAs and walk-away numbers for all parties gives you a settlement range within which to negotiate more comfortably.
Decide how you want to get from offer or demand to preferred settlement number. Often, a litigant gives little thought to what moves should be made as the process goes incrementally from “a” to “b” to “c” in a negotiation. This can result in being thrown off track by counter-moves calculated to emotionally arouse them. Remember that your offers and counter-offers convey meaning about where you are and where you would like to go. So do the moves of your adversary if she is a skilled negotiator.
Counsel your client: he or she should be intimately involved in every step of the evaluation of competing needs, interests, and objectives so as to enter mediation eyes wide open. You are no longer playing the zero sum game of litigation–some compromise will carry the day.
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