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This must be done slowly and strategically, without giving away too much information until you have verified with the mediator that your adversary is beginning to be a believer in your position. This will require a delicate balance by the mediator and, of course, your full and complete trust in the mediatorís representations.
The goal of this technique is to lull your adversary into a state of vulnerability. After considering possible downside scenarios, the mediator can provide your adversary with a face saving pretext to either pay out more or take less than they brought to the table.
A Case Example
Suppose you represent a person who has undergone a hip replacement due to a slip and fall at a department store. During your investigation, you learn through inside information that the store has had other similar falls in the same area, and that the company was well aware of the need to correct the condition that caused the falls. In fact, you have actually talked to several people who have sustained injury in the same area and they are prepared to testify if necessary. The company doesnít know that you have this information, and they take the position that there was no "notice" of the problem and therefore no liability.
During the mediation, you begin cooperatively by offering to openly discuss the issues. In response you receive a lecture in front of your client by your opponentís counsel about what a bad case you have. You ask the mediator to check with the storeís lawyer to see whether there have been any other falls in the area where people sustained injury. Immediately that sparks some interest from the other side, wondering what you are fishing for. They initially resist, but it gets them talking about potential mine fields which they donít want unearthed. The mediator tells you she hasnít learned anything new so you send her back in to force the issue. You also float the name of another claimant who sustained injuries and ask the storeís lawyer if they would like to discuss the situation further. In essence, you are using the power of the mediator to make statements about the strength of your case without throwing it in the other sideís face.
After several rounds of private meetings, you finally tell the mediator to ask the company if they feel there might be some exposure in this case. You ask the question because you know there really have been similar incidents, and you suspect the company doesnít want it to get out in the public. You are prepared to negotiate a confidentiality agreement in exchange for a reasonable settlement. When you get a positive signal from the mediator, you start asking for money, while at the same time being "flexible" with your response so that they know the retaliation has worn off.
The time to negotiate a litigated case can occur anywhere from filing the case until trial. Selecting the most strategic time to engage the other side is the key to a successful outcome. The menu of dispute resolution options available to litigators has expanded over the last 50 years such that settlement opportunities are available to the creative practitioner at almost every stage of a litigation.
Jeffrey Krivis serves as an adjunct professor of Law at the Straus Institute for Dispute Resolution of Pepperdine University (USA) where he administers the Dispute Resolution Clinic and is course director for the Mediating The Litigated Case program. Jeffrey Krivis is a graduate of Southwestern University School of Law (USA). He has mediated over 3,500 cases in a wide range of areas including wage and hour class action, employment, professional liability, entertainment, securities, catastrophic injury, construction and insurance (life, health and disability). For more information about Jeffrey Krivis, you may visit his web site at www.firstmediation.com.
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Copyright © 2000 Jeffrey Krivis
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