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LEFT BRAIN APPEALS

The Five Key Questions

In the initial caucus sessions, one should anticipate needing to respond to some variation of the following five questions from the mediator, which are designed to focus one’s attention on the issues crucial to the settlement of the case:

What are the strengths of your case?

This is a great question with which to start off a caucus session because it goes to the heart of what the attorney wants to communicate to the mediator.

 The mediator should listen attentively to what is being presented to be able to use of the information in his/her meetings with the opposing side.

Some attorneys make it a practice to hold back information during the initial caucus session so as to be able to dole it out during the course of the mediation. This practice is unwise, as it is best to have the mediator armed with the information he/she needs, when he/she needs it, in the caucuses with the opposing party and its counsel.

What are the weaknesses of your case?

It is amazing how few attorneys come to a mediation prepared to answer this question, and when it is asked, it is as though they had been hit by a bolt of lightning.

They have usually come prepared to do battle with the mediator as he/she points out the weaknesses of their positions, not volunteer unfavorable information.

There is rarely a case without some weaknesses, and the mediator probably already has a good idea of where they lie in one's case.

As such, it is best to identify them in order to enhance one’s credibility and authority.

Such a response may be accompanied with an explanation as to how one intends to confront and overcome them in the litigation. The prior concession regarding the weakness serves to strengthen the power of this presentation.

What do you think the opposing side is willing to do at the end of the day?

This question causes one to begin considering what is really achievable by way of the mediation process.

If one regards the objectives of the opposing side as totally beyond the range of what is possible, the question arises as to why one bothered to participate in the mediation.

The question also serves to place the reasonableness of one’s demands and offers in context.

Does it really make sense, for instance, for a plaintiffs’ attorney to make a seven figure demand if he/she believes the defendant is unlikely to settle for an amount in excess of the low five figures at the end of the day?

Conversely, what is the point of a defense attorney making a four figure offer if he/she believes the plaintiff is unlikely to settle anywhere in the six figures?

What will happen if we fail to reach an agreement?

This question goes to the concept that mediators sometimes refer to by the acronym “BATNA,” which stands for the “best alternative to negotiated agreement.”

The point of the inquiry is to draw the attention of the attorney and his/her client to the downside risks of non-agreement. The emphasis is more on what is to be lost if a settlement is not achieved, than on what is to be gained by reaching an agreement.

What do you regard as a fair settlement?

The best mediators actually tend to avoid directly asking this question because they know that once the attorney articulates a settlement goal, it will be harder to get him/her off that number.

Moreover, the predictability of the distributive bargaining process is such that it is usually relatively easy for an experienced mediator to calculate the range in which a party’s settlement goal falls.

Nonetheless, one should expect the mediator to engage one in a significant amount of discourse around the edges of this question.

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