Viewing posts categorised under: Resolution-strategies


As a mediator, I’ve discovered a truth that wasn’t really self-evident during my years as a litigator. Over the past ten years, I’ve repeatedly observed plaintiffs and defendants allow their negotiating strategy to be dictated by the other side. If one side presents a demand or offer deemed unreasonable, the other invariably counters with an offer or demand intending it to be equally unreasonable, inevitably leading to a series of tit-for-tat moves that make resolution more difficult. To prevent this scenario, consider declaring your independence from “reactive” negotiation.  


Nearly seven years ago, the California Supreme Court rendered its decision in Howell v. Hamilton Meats & Provisions, Inc., limiting a plaintiff’s right to recover economic damages for past medical expenses to the reasonable value of the services rendered or the amount actually paid by the plaintiff’s health insurance carrier, whichever is less.

At the time, offering my prediction of the impact Howell was likely to have, I wrote the following:

“In the short run, defendants will undoubtedly temper their settlement offers, believing that juries will be less likely to award substantial “general” damages absent evidence of substantial “special” damages.”  


Nearly eight years ago, on June 2, 2010, pitcher Armando Galarraga — then wearing the uniform of the Detroit Tigers — did something very few players in Major League Baseball have ever done. I’m not referring to the fact that he pitched what everyone agrees was clearly a perfect game. Rather, I’m referring to something perhaps even more rare and, in my opinion, more significant. I’m referring to the fact that a Major League Baseball player reacted to a first base umpire’s glaring mistake – in this case, a mistake of truly epic proportions that deprived the player of his rightful place in Major League Baseball history — not by arguing, but by accepting the umpire’s decision with perfect grace and equanimity.  


A principal function of the mediator in most disputes is to manage negotiations regarding money. When the time finally comes to discuss dollars, I sense that many attorneys fear disclosing their true objective to their mediator, convinced it will undermine their ability to achieve that objective. While at first blush that fear might seem to make perfect sense, my experiences as a mediator have taught me otherwise.  


After nearly four hours of mediation, the gap separating the parties had been reduced to $70,000. Defendant was not willing to make another move, but I sensed plaintiff still had room to negotiate. With the permission of counsel for plaintiff, I offered to present a Mediator’s Proposal for the parties to consider — an offer that counsel for defendant immediately refused, explaining that his adjuster had no interest in having me present a Mediator’s Proposal. Given defendant’s position, the mediation ended for the day.  


Long before I ever contemplated transitioning from litigator to mediator, I learned a valuable lesson about the power of communicating “visually” in mediation – one I have never forgotten.

I was defending a real estate brokerage in a nondisclosure claim for which plaintiff was seeking substantial damages. Counsel for plaintiff requested an opening joint session, to which I agreed. Using an exceptionally well-constructed computer presentation, he proceeded to preview what he was planning to show and tell the jury in his opening statement if the matter proceeded to trial.  


After mediating an interesting case last month, it struck me that mediators and air traffic controllers share something in common. Like air traffic controllers, mediators are responsible for managing the transmission of critical information to multiple parties, providing advice and guidance along the way to assist them in reaching their destination. Sometimes, as in the case I mediated last month, that may require taking an alternate route.  


In less than ten hours, the Dodgers host the Astros in game 7 of what even this Cubs’ fan concedes may well be the Best World Series Ever! Ironically, instead of being home, I’m in Austin, Texas, attending the 2017 Fall Conference of the International Academy of Mediators.

Based on previous experience, one topic likely to generate significant discussion at the Conference — in addition, of course, to the World Series and the friendly rivalry between mediators from California and mediators from Texas — is the continuing reluctance of California attorneys to engage in joint sessions during the mediation process, in stark contrast to their colleagues from Texas, the rest of the country and around the world.  


For the past ten days, the country has been embroiled in debate on social media and elsewhere over yet another divisive issue, i.e., whether NFL players show disrespect for the flag, the military and the country if they “take a knee” during the National Anthem. Whatever your position may be, there are valuable lessons to be learned from the back story concerning the relationship between Colin Kaepernick and Nate Boyer, a story which many people have not yet heard.  


The judicious and timely use of Statutory Offers to Compromise, pursuant to CCP Section 998, can be an exceptionally powerful tool. But when is the best time to serve a 998 Offer? The simple answer — at least for plaintiffs in personal injury actions and defendants in matters in which the prevailing party has a right to recover attorney fees — is the sooner, the better.  

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