Victoria Lindenauer, Esq.
Screw Up Your Next Mediation-
Top Ten Ways!
You're paying for it, right?
Maximize the benefit by avoiding these
epic self-defeating behaviors...
1. Failing to agree on and confirm who's coming: You already know that the right folks with full authority need to be present. Avoid the irritating surprise on mediation day that the insurance adjuster isn't there, or that the plaintiff is suddenly appearing by phone. Confirm ahead.
2. Going in without a clear sense of what you (and your client) want: It's okay in some circumstances to use the mediation to gauge the other side's positions, but don't evaluate your own case for the first time while you're there. Come in with both target and walkaway resolutions (and don't get manipulated beyond your limits without new reasons or information that justify it). If you represent plaintiff, pre-explain to your client the concept of net result, taking into account costs, attorney fees, liens, etc.
3. Getting paralyzed by anxiety over whether you've left money on the table (plaintiffs) or overpaid (defendants): Shoot for a fair and reasonable outcome.
4. Allowing your emotions to be manipulated by your adversary: Getting angry, telling your opponent you are "insulted" and generally losing it or showing frustration telegraph to your opponent that they have the upper hand and can control you. The best advocates are composed and highly effectual. Take five.
5. Making assumptions about what your opponent is doing, and acting on them:
6. Assuming something is non-negotiable: If you don't propose, you will never know. Everyone has been suprised by agreements they never thought could materialize.
7. If I've said it once...: Be patient. Mediations can be like old cars. They have to be cranked a few times to turn over. Settlements often occur at the end of the day. They have a life of their own. Relax and let it unfold. Sticking around is not a sign of weakness.
7. Not eating: Fatigue is counter-productive. (This is why we provide lunch!)
8. Failing to build relationships: When at all possible, interact with your opponent before the mediation. Be pleasant. Research shows that people tend to make deals more often with people they like.
9. Not knowing the law that applies to your case: 'Nuf said.
10. Smelling desperate: Your adversary will pick up on it and take advantage:
AS WE APPROACH HALLOWEEN,
MAY YOUR NEGOTIATIONS BE MUCH LESS SPOOKY,
AND WAY MORE SWEET!
Court approved mediation panelist for:
the Superior Courts of Santa Barbara, Ventura,
and San Luis Obispo,
and Resolute Systems, LLC
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