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Don’t Go Into Mediation Cold: Settlement Requires A Game Plan

It’s Football Season: Break Out The “X’s” and “O’s” And Prepare

Ninety-eight percent of all lawsuits do not go to trial. The vast majority of those are settled.

It’s time to get more pro-active with your retained counsel to prepare adequately for settlement.

As a lawyer trying cases, I would spend at least a week in 12 hour/day trial prep mode for a three-week trial. Then I’d work between 14 and 16 hours a day during trial. (OK, maybe only 10 hours on Sundays.)

Preparing for mediation? Not so much. I’m not sure what it is about lawyers who gravitate toward litigation, but it seems as if we think we already know how to negotiate. (Unfortunately, I’ve suffered from that same hubris myself.)

I regularly give seminars to lawyers about mediation and negotiation and ask how many of them took a formal negotiation class in law school. The average, over a wide pool in many different states, is less than 15%.

Leigh Thompson, a professor at the Kellogg business school at Northwestern, says, “Excellent negotiators do not rely on intuition; rather, they are deliberate planners.”

A week or so before your next mediation or settlement conference, ask your counsel what his/her plan is for the negotiation. Expect a long pause, or an answer like, “My plan is to start really low and go up r e a l l y, r e a l l y slowly.”

Tell your counsel you want to pay them to be thorough and think creatively about the settlement negotiations. Ask them to send you their mediation game plan. It should include a plan of disclosures and a plan of concessions. You might not stick to it religiously, and of course you will modify it as circumstances dictate, but it will be a guide and it will significantly reduce reactivity and negative emotions which can get in the way of settling those cases you don’t want to try.

Posted in Mediation & Settlement, SPOT on Issues.

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