South Carolina BAR Journal
SC Lawyer, January 2012, #4.
From the Mediator's Seat
South Carolina LawyerJanuary 2012From the Mediator's SeatBy Kenneth C. Anthony Jr. I've been practicing law for 33 years now and most days of the week still act as an attorney for a client, trying my best to further his or her cause. But about 17 years ago, I started acting as a mediator once or twice a week. While I still participate in mediations representing clients, I think the once or twice a week that I sit in the mediator's seat has given me a better perspective of what works and doesn't work in the mediation context. So here are a few observations from that perspective. Since mediation usually consists of a lot of going back and forth, to some extent I'll go back and forth with suggestions for the plaintiff and defendant alternately. Since it seems the custom, in mediation as in court, for the plaintiff to go first, we'll start there.
Don't start at the moon.
If you think your case is really worth fifteen thousand dollars, don't start out asking for a million. Just because there is a million dollars worth of insurance coverage, that still doesn't justify starting there. In fact, if you don't sincerely believe your case is worth more than a million dollars, you shouldn't start there because no one's going to pay you the limits voluntarily when that's the worst they can get hurt at trial. Beginning with a wildly unrealistic figure doesn't make you look smart or scare anyone. It makes you look like you either don't know what your case is worth or you haven't told your client. Neither is good. And it puts you in a position where you have to make ridiculously large reductions in your demand to get to a realistic number. If you haven't prepared your client for this, the client will begin to look at you funny and not understand what is going on. "A few hours ago you said my case was worth a million dollars. Now you want me to take ten thousand?"
The better approach is to act as we all did before mediation became the norm. Negotiation would begin with the plaintiff's lawyer making a demand of the defense lawyer. It was higher than the plaintiff would accept but not absurd, and there was usually some basis for the number. It wasn't just pulled from the air or made because that was the limit of the policy. Make a demand on the high side of reasonable, give a reason why you think that number is justified and go from there.
Don't be silly just because they're being silly.
The converse of starting at the moon is starting in the cellar. No matter how ridiculous you think the plaintiff's demand is, that's no reason for the defense to be just as childish. Send the message back that even though the plaintiff obviously has not tried...