Negotiation with the Mediator – Another Impasse Buster for Your Consideration

You have reviewed and analyzed the mediation briefs and the parties have disclosed prior settlement negotiations and where they would like to end up at the conclusion of the mediation; or the parties disclose to you during the course of early caucus meetings what they would accept or pay in settlement.  Often, their goals are simply not in the same ballpark and a traditional negotiation, a series of demands and offers may not be the most productive way to proceed.  In fact, it may be a very counterproductive method of trying to resolve the case.What about having the parties negotiate with the mediator instead of one another?  Instead of carrying a non-starter demand or offer to the other side, why not tell the plaintiff that based on your discussions with defendants, the amount that they are seeking is not in the range that defendants will pay.  Of course, this can only happen after you have had a discussion with the defendants so that you can confidently make such a statement.  The discussion will then turn to why the plaintiff’s contemplated demand is too high in an effort to get the plaintiff to give the mediator a more realistic figure.  The same discussion then occurs with the defendant as to why their contemplated bottom line is not realistic and does not properly assess the risk of loss.