Big Picture=Effective Settlements
I am a big believer in alternative dispute resolution (or ADR). There are a ton of great benefits to settling matters out of court – usually through a mediated settlement conference. But for mediation efforts to be successful, clients and their attorneys should keep these basic tips in mind:
1. Pay the extra bucks for a good mediator. No water-carriers. It is absolutely worth engaging a mediator who understands the issues, can think on their feet, and has the gumption to tell both sides the hard truths. The costs are generally split amongst the litigants so paying for quality in this respect is a no-brainer.
2. Acknowledge the weaknesses in your case – every case has them. Competent lawyers can dilute a case’s weaknesses; good lawyers can turn them into strengths. Great lawyers can assess those weaknesses, allocate a degree of risk, and truly counsel the client with Smart Honest Advice to achieve the best value given the assessment of weaknesses.
3. Preparation; Preparation; and more Preparation. The more a lawyer / client tandem is prepared, the better chance you have of convincing the other side to accept a favorable settlement. You should have materials and helpful case law with you at the settlement conference to highlight the strengths of your case. It may be the first time that the opposing litigant has seen these facts, and can assist with reaching a deal.
4. Make the opposing side feel as if they’ve won (something). Every case turns on specific issues, and what’s important to you may not be important to the other side. When you pick up on something that you can ‘give away’ for little sweat off your brow – give it up in exchange for something that is important to you. Make the other side feel as if they’ve won (something) and you might get more than you expected.
5. Look at the Big Picture. With a calculator in hand, some common sense, and a little cost-benefit analysis, you can ensure that you don’t walk away from a mediation only to spend a great deal of time and money for little return value. It is often not worth fighting over relatively small amounts of money – and trust me – folks do it all the time. Your attorney should be able to reasonably predict the amount of time and money needed to get you close to your desired result. Unless you stand to gain a tremendous value, though, keep at it and try to work a deal that finds some common ground and saves time, stress, and expense.
6. Ask your attorney to give a thoughtful opening statement during the general session. On occasion, I will have a client who believes utilizing the opening session is a waste of time – they want to get to the deal making stage. This is fine, but I would suggest that a good lawyer can make great use of this time. Most likely, the respective lawyers have dealt exclusively with one another throughout the case. As such, the general session is often the first opportunity you have to make your arguments and speak directly to the opposing litigant via your attorney. Again, this may be the first time the opposition has heard facts and a compelling argument as to why they are wrong. This statement should be respectful and alert the opposition that you are at the mediation in good faith, but should also let them know that you are serious in seeing matters wind up justly. Then – permit your attorney to earn their keep – let them shine by pointing out the flaws in the opposition’s case, highlighting your strengths, and catering the statement to persuade the other side to agree to a favorable settlement, or agree to a settlement period – as the case may be given the circumstances.
7. Consider stress and other hard-to-measure expenses. When working toward a settlement, we always calculate hard figures, known costs, time frames, and other criteria that we can concretely measure. But, what about the intangibles? I always remind my clients of the easily forgotten expenses that are tough to value. Here are few to consider: Stress, even the most savvy or experienced litigants endure a lot of stress during on-going litigation. Health, I have seen litigants’ health suffer during on-going litigation. Time off from work and with family, if the case proceeds you will miss time from work going to hearings, depositions, and might as well take a week’s vacation for a trial. You will spend time answering interrogatories, compiling documents, and communicating with your lawyer while your family sits by. Stress on family members and friend, you are not the only one who is stressed out during the litigation cycle – it effects those around you. And, when the time comes for trial, your witnesses will likely have to meet with your lawyer and necessarily be on standby to take the stand – which means they miss work and family time.
I think these pointers are helpful and instructive when the time comes for alternative dispute resolution. Ideally, most cases could undertake a settlement course before a lawsuit is even filed. However, given that superior court cases in North Carolina require mandatory mediation, as do all district court cases involving child custody – when the time comes to mediate, be ready and look Big Picture. Taking a Big Picture approach does not mean that you will accept less than what you could expect in court, but it does mean that you will be fully informed with Smart Honest Advice, and able to make best use of your settlement conference.
please contact our office if you have questions or need advice.