The West Virginia Record reported on a failed mediation effort because a party instructed his attorney to not make any offers of settlement. According to the published report, a number of citizens hired a private investigator to investigate allegations of corruption in the West Virginia justice system. The citizens alleged that the investigator's license was suspended prior to his representation. The private investigator hired an attorney and instructed her to not make any offers, just to file a motion to dismiss the lawsuit.
More often than not, parties to a mediation take the same approach of this private investigator: come to the mediation with no offer. There are a number of reasons parties take this approach. Perhaps it's because they think they didn't do anything wrong, so why pay? Or because of the belief that if you make an offer you may be viewed as weak and you'll open up you wallet to make the claim go away.
In many instances, however, this is a counter-productive strategy. The value of mediation is getting the parties together and letting them have their respective "say" in a neutral place. Sometimes all a party wants to do is to express their view. Sometimes, a simple apology will help resolve the dispute. But the approach of "take no quarter" can be very detrimental to both sides because it leaves unresolved emotional issues, there is no guaranty that a party will have their say in a courtroom, and there is no certainty that a court will grant you the relief you requested.
Most importantly, this also brushes up along the concept that a party should participate in mediation in "good faith." What good faith means can have various definitions, and it is certainly true that a court cannot compel a party to settle a case. I typically define "good faith" as meaning that you have allocated approprirate time to the mediation, to explore all of the possibilities of settlement, and that the party is represented by someone who has the appropriate authority to enter into a binding settlement agreement.
Given the uncertainties and costs associated with a trial, it does make sense to spend some time at a mediation, explore the alternatives to trial, attempt to understand the other side's position, and see if a negotiated settlement is the best alternative to the uncertainty of the outcome at trial.
More often than not, parties to a mediation take the same approach of this private investigator: come to the mediation with no offer. There are a number of reasons parties take this approach. Perhaps it's because they think they didn't do anything wrong, so why pay? Or because of the belief that if you make an offer you may be viewed as weak and you'll open up you wallet to make the claim go away.
In many instances, however, this is a counter-productive strategy. The value of mediation is getting the parties together and letting them have their respective "say" in a neutral place. Sometimes all a party wants to do is to express their view. Sometimes, a simple apology will help resolve the dispute. But the approach of "take no quarter" can be very detrimental to both sides because it leaves unresolved emotional issues, there is no guaranty that a party will have their say in a courtroom, and there is no certainty that a court will grant you the relief you requested.
Most importantly, this also brushes up along the concept that a party should participate in mediation in "good faith." What good faith means can have various definitions, and it is certainly true that a court cannot compel a party to settle a case. I typically define "good faith" as meaning that you have allocated approprirate time to the mediation, to explore all of the possibilities of settlement, and that the party is represented by someone who has the appropriate authority to enter into a binding settlement agreement.
Given the uncertainties and costs associated with a trial, it does make sense to spend some time at a mediation, explore the alternatives to trial, attempt to understand the other side's position, and see if a negotiated settlement is the best alternative to the uncertainty of the outcome at trial.
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