- Mediating before the case is ripe for settlement – when lawyers know only what their own clients have told them.
- Failing to regard the mediation as a case dispositive proceeding and to prepare accordingly.
- Negotiating against an “empty chair”, i.e., allowing an opposing party not to attend or to attend by phone, unless absolutely necessary.
- Negotiating against an “empty suit”, i.e., an opposing party representative who lacks authority to make sufficient concessions to reach a settlement.
- Selecting the wrong client representative – too little authority, too much emotional volatility or culpable personal involvement.
- Failing to secure the participation or availability of a non-party necessary to reach a settlement, such as an insurance adjuster, guarantor, indemnitor, mentor, spouse or significant other.
- Treating the mediator as an adversary rather than as a helpful resource.
- Sending the wrong lawyer – if you intend to make peace, don’t send Mongo!
- Waiving opening statement – this is your chance to speak directly to the opposing decision maker and gives all parties the opportunity to vent and to have their “day in court”.
- Becoming impatient – mediation is a process; a dance. Don’t be put off by an “insulting” first offer. The process has to start somewhere.
- Being the first to quit – even if you cannot reach a settlement, try to negotiate long enough to determine the other side’s bottom line.
- Coming to the mediation to try your case before the mediator rather than to negotiate a settlement with the other side.
- Believing you are there to punish or vanquish the other side rather than to settle the case by negotiating a mutually acceptable agreement.
- Falling in love with your own valuation of your case – you will often get it wrong, and even when you do get it right, the trial judge, the jury or an appellate court may get it wrong.
- Making your best offer your first offer – no one ever believes you.
- Believing that bargaining must be symmetrical, i.e., that the parties should make equal moves in each round of bargaining or overall – they rarely do.
- Bargaining reactively and emotionally rather than pursuant to a well thought out negotiating plan.
- “Yo-yoing”, i.e., randomly alternating large and small positional moves.
- Proposing a link or bracket move, e.g., “We’ll come up to $X, if you’ll come down to $Y”, prematurely when the bargaining gap is still too wide.
- Failing to advise the mediator and the other side in the late rounds of bargaining that you are nearing your final offer – by tapering your concessions and by instructing the mediator to tell them you have only a little negotiating room left.
- Offering to split the difference – this nearly always elicits a counteroffer to split the remaining difference.
- Failing to look at the case from the other side’s point of view – what do they need to settle the case; how will they interpret your offers?
- Failing to recognize the possibility that there may have been criminal conduct on the part of your client that might be exposed should the case go to trial.
- Being gratuitously nasty – needlessly raising the emotional temperature.
- Making backward moves – these are almost always counterproductive.
- Presenting ultimatums – these paint you into a corner, so use them sparingly.
- Failing to provide credible documentary evidence of a defendant’s uncollectibility.
- Suggesting in the presence of an adverse party that its counsel reduce their fees in aid of settlement.
- Failing to draft a proposed settlement agreement and bring it to the mediation.
- Failing to sign a binding agreement at the mediation table as soon as the parties reach an agreement – leave no opportunity for buyer’s remorse to set in.
- Failing to have a transactional lawyer available to assist in negotiating and drafting a complex settlement agreement and to provide tax advice when needed.
- Failing to include in the settlement agreement, where appropriate, a disclaimer of any admission or inference of a settling party’s negligence, liability, fault, wrongdoing or illegal conduct.
- Failing to include in the settlement agreement, where appropriate, provisions concerning confidentiality and non-disparagement.
Francis Carter
