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2. The other side does not respond to telephone calls or letters.
Comment: Previously, if the case was not in litigation, you could only wait for the other side to act. When you send a case to an ADR service provider, we contact the other side and propose mediation. This contact from a neutral usually gets the other side to mediate.
3. It has been several months without settlement discussions on this file or the file is over one (1) year old.
Comment: An aging file increases transaction costs. Evidence may become stale or accident scenes may change. Introducing mediation at this stage gets settlement discussions back on track. Since we contact the other side and get them to agree to mediate, there is nothing lost by trying and the case will probably settle.
4. Additional information such as updated medical bills or wage loss statements is needed before you discuss settlement.
Comment: We help facilitate an informal exchange of information without the necessity of subpoenas or other costly discovery tools. We usually get the information and arrange for you to receive it before mediation.
5. A lawsuit will soon be filed or was just filed.
Comment: Sending a claim to mediation may stop the filing of a lawsuit, get you an extension of time, get you information, and save you litigation expenses.
6. The plaintiff is unrealistic and/or emotional.
Comment: Mediation allows the plaintiff to "have his day in court" and educates him about the realities of litigation. This settles cases.
7. The insurer wants to close cases faster and reduce or better control its legal and administrative costs.
Comment: Mediation settles most cases. It saves you time and money by settling cases before large expenses are incurred. In addition, approximately 96% of all cases files are settled sooner or later.
8. The cost of litigation exceeds the real value of the claim.
Comment: Mediation can eliminate or reduce your litigation expenses. It helps settle these cases effectively.
9. The other side is known to prefer settling cases.
Comment: Mediation helps you settle these cases without incurring unnecessary litigation expenses.
10. You are handling numerous similar cases such as a bus accident or multi-car collision.
Comment: Mediation can be used to handle all of these claims at one time and permit you to reduce your transaction costs.
11. Negotiations have broken down and you are about to incur substantial legal expenses.
Comment: Mediation gives you another bite at the apple. By intervening through mediation, you can avoid the additional expenses.
12. The case is in litigation and expensive discovery is imminent.
Comment: You can usually discuss the case intelligently with far less discovery than you need for trial. mediation may eliminate this expense.
13. The case is complex, time consuming and expensive to prepare for trial, e.g. malpractice, construction, asbestosis.
Comment: These cases are frequently mediated successfully before large expense are incurred.
14. Final trial preparation is about to begin.
Comment: Most cases settle "On the courthouse steps," after all the expenses have been incurred. Mediation usually settles cases early and without incurring these expenses.
15. Your position on the trial calendar causes to be uncertain if you will really go to trial or be continued and have to prepare and pay your preparation expense again. Worse, you have just been continued.
Comment: Mediation allows you to stop the bleeding of trial preparation. Oftentimes expert depositions and other costly matters can be avoided.
16. The time needed to obtain a trial is three months or longer.
Comment: Mediation is fast. Why wait and incur unnecessary expenses?
17. You or your opponent have a "client control problem". You know that settlement figures are reasonable, but the clients will not agree.
Comment: Clients almost always attend mediations. The education that occurs gives a client a more realistic view of the issue. Once that "education" occurs, even difficult clients will work to settle the case, The presence of the client-plaintiff at mediation is frequently the "missing key" to reaching a settlement.
18. Your experience tells you the case should settle though the parties are far apart in dollars.
Comment: Mediation eliminates much of the "posturing". It also educates the client about the realities of litigation and helps settle cases.
19. The case involves numerous parties, making a comprehensive settlement difficult.
Comment: Mediation helps settle multiparty cases by organizing and structuring the negotiations, allowing each side (group) to confidentially explore settlement options.
20. There are internal disputes in one or more sides in a multi-party case, e.g. multiple defendants disagreeing about their portion of liability.
Comment: Mediation works equally well for these cases. It merely requires the mediator to take additional steps to settle intergroup as well as intergroup conflicts.
21. The case involves a "public person" or a public body that would prefer to avoid excessive publicity which could sabotage negotiations.
Comment: Mediation is confidential and private. Only the parties attend. Only the results may become public.
22. The case involves issue or evidence a party may wish to keep private, e.g. real loss of consortium, notorious diseases, etc.
Comment: The privacy and confidentiality of the process give the parties a better atmosphere to candidly and completely examine the issue and settle the case.
23. The parties have and want to preserve an on-going relationship or are forced by circumstances to continue to work together, i.e. business ties, partnerships
Comment: In mediation, the parties control the settlement and the process, which is informal. Consequently, they do not develop the hostility and anger that usually result from the adversary process.
Jeffrey Krivis is the author of two books: Improvisational Negotiation: A Mediator’s Stories of Conflict about Love, Money, Anger—and the Strategies that Resolved Them, and How To Make Money As A Mediator And Provide Value To Everyone (Wiley/Jossey Bass publisher). He has been a successful mediator and a pioneer in the field for eighteen years. Krivis is on the board of visitors of Pepperdine Law School and serves as an adjunct professor of law at the Straus Institute for Dispute Resolution. Contact him at his website, www.firstmediation.com.
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