Try to avoid negotiating against an “empty suit,” that is, a client representative who, although physically present, lacks sufficient authority to make the concessions necessary to settle your case. If your client or client representative has settlement authority, he or she is placed at a disadvantage negotiating against one who lacks authority. Recognize, however, that when negotiating against a government agency or a very large corporation or financial institution, only rarely will a representative with true worst-case authority attend the mediation. In that case, the best you may be able to get is a representative who enjoys the respect and trust of his or her board, committee, or other ultimate decision maker. Discuss authority issues with opposing counsel before the mediation conference, and involve the mediator if you are not satisfied.
Francis Carter
