Mediation Maze-2

The process of mediation.

Mediation is a process, a process you can use to reach a successful resolution in your case, but only if you understand how the process works. So many people fail to maximize what they can get out of their case by failing to understand the mediation process to begin with. You can literally snatch a win out of the mouth of defeat if you know how to use the mediation process to your advantage.

For starters, mediations are rather odd. In most mediations, you use a neutral party (a retired judge or a lawyer) to negotiate a settlement between the parties. The mediator goes back and forth between two rooms shuffling proposals and telling you how bad your case is until a settlement is produced (or not). It is important to understand that mediation is NOT a court process—meaning the mediator will not decide who is right and who is wrong. The mediator’s job is to settle the case, and that can only be accomplished by finding the point at which money will change hands in exchange for the case being dismissed. That’s all mediation comes down to… every time.

May people, lawyers included, mistake mediation for a time to lay out legal arguments. Some legal arguments are discussed in mediation, but they really are only minimally relevant. Cases don’t settle at mediation based on the law, they settle at mediation based on the payment of money. The more you focus on the negotiation, the better.

If you are the petitioner (the one suing) you want to get as much money as possible from the opposing party. If you are the respondent (defendant) you want to pay as little as possible. Where do the parties meet? That’s for the mediator to find out.

Step One: What’s it worth?

The first step to a good mediation is to determine, before you go into mediation, what your case is really worth. That can be hard to do from an objective viewpoint. But you have to ask yourself, how much will I get if I win my case completely. A complete win at trial is rare (really rare), but this will set your high-water mark for settlement. If the most you are ever going to get out of your case even with a complete win is $1 million, then you can’t ask for $2 million at mediation. That is not going to work.

Step Two: What’s it REALLY worth?

Next you have to discount the complete win number by the chance of loss. That is even harder to do. But an experienced lawyer who has tried cases like yours in the past can usually provide you with a solid assessment of your chances for success. You also have to take into account the nature of the assets you are suing for. Some assets look good on paper, but are not really worth much in reality. For example, unsecured loans to a “friend” of the decedent—the loan value may be $50,000, but if the chance of collecting is zero, then the note value is really zero.

Once you have the best number and the more realistic discounted number, you know what your range is for settlement. If the most I am ever going to win is $1 million, but my realistic chances of winning a trial is only 30%, then my range may be $300,000 to $1 million. This range will change depending on how strong the evidence is that I have collected so far. The weaker the evidence, the further down from $300,000 the settlement number must be adjusted.

Step Three: Sweat the small stuff.

Now comes the tricky part, the personal stuff. There may be any number of items, assets, personal things that you want out of your Trust or Will lawsuit. These items may not have much monetary value, but they have significant sentimental value. You want to be sure to include these items in your demand. Sometimes you can get much of what you want in this regard without paying much for it because the opposing party may not value personal property.

Once you have this all figured out, you are ready to attend mediation. That is where the process really begins. And that’s where our next post starts…