Mark’s Mediation Strategies

It can be frustrating to show up at a mediation only to find out that the other side lacks adequate authority to make a deal.  In cases covered by insurance, the adjuster may be the key decision maker, so having them attend is important.  Many adjusters, though, are busy handling a large volume of claims, which makes it impractical to go to every mediation session.  They resist traveling by promising to be available by telephone. 

In reality, however, an adjuster who is not physically present may not be exposed to all the information and other factors that drive settlement, and understandably, may not feel fully invested in the process.  If the mediation runs late and the adjuster is on the East Coast, they might be on their way home at the moment when a decision is most needed. 

To avoid this problem, prior to the mediation, think about whether an adjuster’s authority is necessary to conclude an agreement, and if so, inquire whether they will be in attendance.  While having someone personally appear would be ideal, if that is not going to happen, at least be sure the adjuster is updated frequently on the status of settlement discussions, and that defense counsel has a phone number where they can be reached.  On the other hand, an adjuster’s complete absence, including by telephone, may be a “red flag” affecting the viability of the negotiation.

As always, I am ready to work with you and your clients to achieve satisfying case resolutions.

Regards,

Mark Loeterman
Mark Loeterman Mediation
Email: Mark@MLmediation.com

Mark’s Mediation Strategies

The 1995 movie “Apollo 13” recounts the harrowing experience of astronauts and ground controllers as they responded to a catastrophic fuel tank explosion that crippled their spacecraft.  In a moment, the nature of the mission drastically changed. Preparations for a moon landing were jettisoned and a new, improvised mission was adopted:  Bring the crew safely back to earth.  Technical teams confronted a daunting task.  How do you solve a sudden and unforeseen problem when time and resources are severely limited?  In the end, their success showed that creativity in problem-solving reaches its maximum potential when the stakes are high and failure is a possibility but not an option.

Negotiators face many of the same kinds of pressures today as NASA engineers did three decades ago.  Sometimes, our fixed assumptions about how things work just won’t do.  At a stressful mediation session, we may be asked to make decisions without complete information, or an adversary may surprise us with new evidence which challenges our views.  And all of this may occur in an environment where there simply is no more time to investigate, to research, or to decide whether to accept or reject a settlement proposal.

Step-by-step, the Apollo astronauts took the problem apart to see how it worked, and therefore, how it could be fixed.  One of the Apollo flight officers, Jerry Bostick, described the situation this way:  “When bad things happened, we just calmly laid out all the options.  We never panicked, and we never gave up on finding a solution.”  That meant, for example, that equipment originally designed for one purpose was reconfigured, adapted, and transformed to serve an alternate purpose. Thus, the self-contained lunar module was converted to become the main cabin.

For negotiators, when things don’t go exactly as we expect, we have to be able to diagnose the problem and not get stuck thinking there is only one right answer.  Instead of giving up or “leaving money on the table,” we have to brainstorm the range of available options, and be creative and unrelenting in our pursuit of a viable solution.

As always, I am ready to work with you and your clients to achieve satisfying case resolutions.

Regards,

Mark Loeterman
Mark Loeterman Mediation
Email: Mark@MLmediation.com

Mark’s Mediation Strategies

In cases involving a dispute over money, the parties routinely exchange a series of offers and counteroffers, but in the process, may not give much thought to the message their numbers send to the other side.  For example, when a party makes a small, incremental move in comparison to his previous moves, is that party signaling he is quickly coming to his final number, is he reacting negatively to the other side’s last move, or is he showing pessimism about the chances of settlement? Too often, the message underlying a proposal is misinterpreted, leaving the participants feeling angry, frustrated and discouraged. 

One way to avoid this problem is to couple your next move with a verbal explanation that makes your meaning and intention clear.  The mediator can help you develop this rationale and ensure that it is communicated effectively.  This is especially important when you or your client have decided to make a painful concession on a point which has been hotly contested.

A carefully planned message delivered with your settlement proposal ensures that negotiations do not falter on a misunderstanding, and can demonstrate to the other side your good faith, even if they don’t agree with your position. 

As always, I am ready to work with you and your clients to achieve satisfying case resolutions.

Regards,

Mark Loeterman
Mark Loeterman Mediation
Email: Mark@MLmediation.com

Mark’s Mediation Strategies

In virtually every negotiation, differences emerge which threaten to scuttle a deal.  Seeing only obstacles ahead, some people simply throw in the towel.  Rather than giving up, however, look for ways to “dovetail” conflicting interests, making concessions that are of low cost to you and high value to the other side.  This can be an effective technique for getting around an impasse.

For example, in a business dispute, the parties may value time differently.  An installment plan operates on this principle, where the defendant is willing to pay a higher price if it can pay later, and the plaintiff is willing to accept delayed payment if it is assured of receiving a higher price.  The idea is that exploiting opposing preferences and priorities can lead to a trade that benefits everyone.

There are other examples as well.  Setting a precedent may be important to one, while the other may care about vindicating its reputation.  In a real estate case I mediated, a buyer who felt cheated in its acquisition of a luxury residence feared potentially staggering costs to repair undisclosed defects, and that the stigma which might attach in a future sale would adversely impact the property’s value.  By contrast, the seller believed that any defects were merely cosmetic rather than structural, that the repairs could be taken care of at minimal expense, and once completed, the property could likely be re-sold for more than the price the buyer had paid.  What kind of a deal did they negotiate?  Rescission of the purchase and adjustment of each side’s transaction costs.

As always, I am ready to work with you and your clients to achieve satisfying case resolutions.

Regards,

Mark Loeterman
Mark Loeterman Mediation
Email: Mark@MLmediation.com

Mark’s Mediation Strategies

In positional bargaining, which is what occurs in the settlement of many legal cases, each side takes a position, argues in support of it, and makes a series of concessions in the hope of reaching an agreement.  While pressing their own claims, however, parties typically do not acknowledge to the other side that they have given due consideration to their opponent’s arguments.  As a result, negotiators become frustrated and angry because the concessions they receive do not seem to take into account the things they have been saying. 

By linking your concession to one of the other side’s issues, you show them not only that you have been listening, but that you are aware of the risks associated with some legal argument or piece of evidence, even if you do not agree with it. 

At bottom, we all want to be heard, and the feeling that the other side is paying attention and understands our views can be a powerful stimulant to productive negotiations. We enhance the credibility of our next number by “tying” that move to an opponent’s specific concerns, and avoid any appearance that our proposals are just another arbitrary step in the “negotiation dance.”

As always, I am ready to work with you and your clients to achieve satisfying case resolutions.

Regards,

Mark Loeterman
Mark Loeterman Mediation 
Email:  Mark@MLmediation.com