While engaged in litigation, we generally think of opposing counsel as our adversary.  The opposite party is considered the "opposing party".  But when you get to a negotiation, the counsel, parties and insurance carriers become your "negotiating partners".  That is, just as in a dance or a duel, it takes two willing participants to carry on the necessary choreography to structure a complete settlement of a dispute between two sides (or more).  If either one is absent--the show has much less chance to succeed.  And as soon as one party closes the door or shuts down, the negotiation is over.

You can, and should, use your mediator to make sure that every party who is necessary to make an ultimate decision will be participating fully at the mediation.  For example, if you suspect there are several potential insurance policies which may need to be on notice of your claims, communicate that to your mediator in advance of the hearing.  If excess coverage may be triggered by your initial demand, make that apparent in advance of the hearing and make sure that the excess carrier is aware that it is exposed to liability based upon your claims.

If, as defense counsel, there are reservations of rights, or claims of indemnity, or non-participating parties who have refused to engage in the negotiation, advise your mediator in advance and let her make arrangements to have contact with them if necessary or to get consent from the other side to leave them out of the negotiation.  If your client's wife or parent is going to be consulted at the end of the day and given veto power over the party's decision, consider inviting them to attend the hearing or set up a pre-mediation call with your mediator and your client to decide whether they should or should not be there.

Finally, if there are critical liens arising out of medi-cal, Kaiser or worker's compensation, or even prior counsel or other pending actions that may affect your settlement, you should know what they are and have begun to negotiate those in advance, too. 

You can't succeed without planning for your success!

Good Luck!  

 

Jan Frankel Schau  

 

 P.S.    The Beverly Hills Bar Association's Labor & Employment Section is holding an MCLE event on Tax Consequences in settling Employment Disputes on March 3, 2014.  You can see the flier here:   www.bhba.org/sections/laborandemployment/events.  

Contact me for details.  I'd love to see you there! 

    

Jan Frankel Schau Mediator/Arbitrator/Attorney ADR SERVICES, INC.    310-201-0010 [email protected] Follow me on Twitter at:  @JanSchau Facebook at:  Schau Mediation Blog:  Viewfromthemiddleoftheroad.blogspot.com Author, "View from the Middle of the Road:  A Mediator's Perspective on Life, Conflict and Human Interaction" (AuthorHouse 2013) Now Available on Amazon.com

To Schedule a Mediation     Contact Case Manager:  Eve Thorstens:  310-201-0010    Jan Schau's Direct Dial:  818. 986.9876    Visit Jan's Website     Check out my Weekly Blog: www.viewfromthemiddleoftheroad.blogspot.com    Author, "View from the Middle of the Road:    A Mediator's Perspective on Life, Conflict and Human Interaction" (Author House, 2013)   Purhcase "The View from the Middle of the Road"