Kent B. Scott, J.
It’s first down and ten on the twenty-yard line of your opponent’s goal. You are in the red zone. Here we go again. Crunch time. In lawyer’s terms, it’s mid-afternoon and you and your client are in the world of “mediation gridlock.” What can you do to travel that last twenty yards to resolution? What have you done to prepare for this moment? This is the moment when both you and your opposition dig your heels in up to your ankles.
A “fumble” at this point could send you and your client to the showers: cold, cold showers. What you say and how you play in the red zone can bring you across the resolution goal line or result in another turnover and send you back to the litigation system. The key to success in the mediation red zone starts before the negotiation begins and requires skill and patience as the goal line approaches. The following article is designed to help the mediation advocate negotiate his or her way through the mediation red zone.
Why the Need for Better Bargaining in the Red Zone?
How are we doing as a profession in predicting the outcome of a litigated matter? A couple of recent studies revealed surprisingly identical results. Over 2,000 cases were analyzed in two separate jurisdictions. The studies compared the refused best and final settlement offer with the eventual verdict. In both studies, the plaintiffs committed decision errors in 61.2% of their cases. Defendants made decision errors in 24.3% of their cases. However, the magnitude of the error told an even more interesting story. On the average, the verdicts for the plaintiffs were $43,100 less than the average offer while the defendants paid on average $1,140,000 more than they could have to settle the case.
How can you make mediation a successful play in helping you and your clients achieve a better alternative to a litigated resolution? First, you need to determine when it is right to mediate. Second, you need to find the right mediator. Third, you need to ensure that you have properly prepared for the mediation by (1) drafting an effective and powerful mediation position paper, (2) preparing your client for the mediation process, and (3) ensuring that you have someone present with settlement authority. Finally, to make mediation successful, you must trust the mediation process.
When to Enter the Mediation Red Zone
Two phrases are responsible for not getting a matter to the bargaining table at the right time: (1) “It would be a waste of time because the other side is so unreasonable” and (2) “We are too far apart to explore settlement.”
Mediation advocacy in the red zone is not trial advocacy. Good mediation advocacy requires openness, candor, and a willingness to compromise. A forthright exchange of material information is required. Preparation is key for playing in the mediation red zone. Withholding material information usually turns into a fumble that ultimately sabotages the mediation process.
Additionally, being willing to compromise is critical to operating in the mediation red zone. No mediation should be held unless all participants come to the table with a desire and willingness to compromise in good faith. Every lawsuit involves handicaps, costs, and risks. Unfortunately, the “I win, you lose” attitude just does not work. Instead, both counsel and client need to come to the mediation with a willingness to find a better option from that of a litigated resolution. The advocate or client that comes to the table with an “I win so you can lose” attitude is offside and out of bounds, a sure recipe for impasse.
Choosing the Right Mediator
Mediator selection is critical to operating in the mediation red zone. Think of the mediator not as a coach, opposing player, or referee. Rather, the mediator is really like an unbiased color analyst that sits up in the booth and oversees the entire playing field. The mediator has the play book from both opposing teams and a computer full of information at his or her disposal that the mediator has studied. The mediator is neutral. The mediator’s job is not to impose a resolution but to find pathways through which the players can navigate toward their objectives while mediating in the red zone. The following are a few factors to consider when selecting a mediator: