In the initial stage of the THM, the mediator will need to fill in the gaps from the pre-mediation talks - a quick confirmation of the facts, adjusting to personalities, and last minute changes in bargaining position. The parties have briefed their best case and brought their favorite show and tell exhibits. The mediator knows the strengths and weaknesses on each side. Everyone, including the mediator, believes it when the mediator says, “I think there’s a good chance we’ll settle the case today.”
Fully informed, with complete credibility and confidence, it’s time now for the mediator to make surgical moves on the real obstruction. It might be a difference in accounting, the sobering realization of the real cost of going forward, or unaccounted-for medical information. Get past it so everyone can get down to it. Bargaining should start as soon as practical but at least by the beginning of the second hour of the THM.
The parties are kept busy even when the mediator is out of the room – working on a response to a question or concern, coming up with alternatives to the last offer/demand, brainstorming out of the box solutions, providing evidence or legal support for a prior argument, or drafting and reviewing terms to get the written settlement agreement closer to completion.
If parties start to digress into issues that do not inform and assist the process, then get it back on track quickly. Remind them that exaggerated demands and low-ball offers that they could not reasonably expect the other party to consider will make the process last longer and encourage the other party to make the same gesture. You are not telling them what the case should settle for, just what it won’t settle for in this universe. The clock is running, the attorneys' fees are mounting, the mediator’s fee will start to escalate if they don't stay on track - give me something I can work with here.
When everybody's enlisted, when all are working toward the same goal within an allotted time, three hours is plenty to get a deal. Live your faith in the process and that the matter can and will settle within the allotted time. Let everyone envision how nice it will be to have this dispute behind them, and to beat the traffic home.
Fully informed, with complete credibility and confidence, it’s time now for the mediator to make surgical moves on the real obstruction. It might be a difference in accounting, the sobering realization of the real cost of going forward, or unaccounted-for medical information. Get past it so everyone can get down to it. Bargaining should start as soon as practical but at least by the beginning of the second hour of the THM.
The parties are kept busy even when the mediator is out of the room – working on a response to a question or concern, coming up with alternatives to the last offer/demand, brainstorming out of the box solutions, providing evidence or legal support for a prior argument, or drafting and reviewing terms to get the written settlement agreement closer to completion.
If parties start to digress into issues that do not inform and assist the process, then get it back on track quickly. Remind them that exaggerated demands and low-ball offers that they could not reasonably expect the other party to consider will make the process last longer and encourage the other party to make the same gesture. You are not telling them what the case should settle for, just what it won’t settle for in this universe. The clock is running, the attorneys' fees are mounting, the mediator’s fee will start to escalate if they don't stay on track - give me something I can work with here.
When everybody's enlisted, when all are working toward the same goal within an allotted time, three hours is plenty to get a deal. Live your faith in the process and that the matter can and will settle within the allotted time. Let everyone envision how nice it will be to have this dispute behind them, and to beat the traffic home.
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