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When Mediation Negotiations Get Stuck

Burdine & Brown April 2, 2019

There are a number of well qualified mediators in the Atlanta Metro market to help parties resolve disputes. There are a number of retired Court of Appeals Judges, retired Superior Court Judges, retired and active Administrative Law Judges and many successful attorneys who just want to move from litigation responsibilities to perform their new found job as a Mediator.

Ms. Lee Wallace is a formidable mediator, with over 25 years of litigation experience before recently becoming a full-time mediator. She gave me permission to re-print a very good article that she recently wrote addressing what happens “when negotiations get stuck.” She can be reached directly to schedule a mediation in personal injury, medical malpractice, contract disputes as well as workers' compensation cases at 404-550-4615.

I have added a few notes here and there to this well-written article. Enjoy!

9 Things to do when Negotiations Get Stuck By Mediator Lee Wallace Additional thoughts by Attorney Thomas F. Brown, II, in italics.

When Sam walked into the mediation conference room, his client Ellen was already there, tapping her fingers nervously on the table. You couldn't always pick your clients, Sam thought, but Ellen was someone he would represent any day of the week. Normally friendly and upbeat, she had been a hard-working single mom who held two jobs – until she was injured in the accident. Now she spent her days in doctors' offices, and her family was struggling to make ends meet. Still, Ellen always had a friendly smile and thanked him for representing her.

The case was a big one for Sam, too. This was his first million-dollar case, and he had put a lot of firm resources into it.

The mediation got under way, and initially Sam thought things were going well. Both sides were moving toward a middle ground, and he figured they would be done by mid-afternoon.

But to Sam's surprise, the parties hit an impasse just after lunch. The defendant had barely moved with the last two offers, and Sam was unsure how he should respond. Ellen's smile had vanished, and she was rubbing her temples. Was the mediation ending in failure? What could he do?

When Negotiations Get Stuck

It happens in just about every negotiation. The parties hit a point where they both have more room, but they feel they are too far apart to ever reach a settlement. Here are 9 things the parties can do when that happens.

1. Check your facts.

As long as the two sides are evaluating the same case, their valuations usually are within a reasonable range of one another. So when the other side is making offers or demands that seem clearly inappropriate for the case, the first question you want to ask is: why?

Start with your own evaluation of the case. Could you be missing any critical piece of information?

If you feel pretty confident that you have discovered all the pertinent facts, put the question to the other side. Ask them whether you are missing something that you need to be considering. By doing this as diplomatically as possible, you keep the negotiations moving toward settlement.

2. Check their facts.

Of course, the mismatch could be the other side's problem; they may be missing or misunderstanding key facts.

One of the reasons the opening conference is so important is that it serves as a fact checker. When both sides present an outline of their arguments, everyone can be sure they are operating under the same basic facts. However, the opening conference is becoming increasingly rare in workers' compensation settlement negotiations. Yet it is very important if there are conflicting doctor opinions and the impairment ratings are vastly different.

When the two sides both write mediation briefs, the mediator also can be a check to ensure the two sides have the same general understanding of the facts. What usually happens, though, is that each attorney sends to the mediator their settlement proposal with all attachments. This, too, is very helpful.

3. Enlist the mediator's help and give her ammunition.

When the parties hit impasse, a good mediator is just getting started. If you are convinced the other side is being unreasonable, talk to the mediator about why you think that. Give the mediator the ammunition she needs to help the other party reach a more accurate evaluation of the case.

These are the first three of the successful techniques Lee employs. Stay tuned…more to come next week!