Mediation: Making Money Talk

From the blog of Nancy Hudgins

I had the pleasure of meeting Andy Little, the author of Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes, at the ABA Dispute Resolution section’s annual meeting in Seattle earlier this year. Andy is a great guy, as well as a thoughtful mediator.

Andy has written a wonderfully useful book about mediating civil trial court mediations. His bona fides are inpeccable: after 17 years as a trial lawyer in North Carolina, he began mediating litigated cases. He has been mediating full time for 16 years.

Initially, Andy introduces the reader to a typical rear-ender case. The plaintiff was 24 years old. After 12 rounds of proposals, in a mediation lasting 4 hours and 36 minutes, the parties settled.

“At the end, the participants signed the argeement, wrote their checks, said their good-byes, and went their separate ways. Their interaction was courteous but stiff. Although an agreement had been reached at mediation, no one was particularly happy with the settlement or the difficulty with which it was reached.

This was a once-in-a-lifetime experience for [plaintiff]. He would not have an opportunity to see or speak with the people on the defendant’s team again. His relationship with [his attorney] concluded with the settlement of the case and would not seek the services of a lawyer until age 40 when he inherited some money, bought a house, and made a will.

The members of the defense team were professionals. For them, this was just one more automobile accident, one more claim, and one more negotiation.

Welcome to the world of civil trial court mediation.”

I don’t think I could have set up this scenario any better. This is exactly what civil litigation mediation looks like. Even given this reality, Andy argues that facilitative mediators can play a productive role.

In the position-based bargaining that goes on in civil trial court mediation, the mediator’s chief aim is to help the parties overcome their reactivity, refrain from stopping prematurely in reaction to the other side’s proposals or in reaction to their own pessimism about the prospects of settlement, make thoughtful rather than reactive proposals, and continue moving through their ranges until they reach their best numbers or are sure that their best
numbers will not settle the case.”

This is not just a book for mediators. It’s a book for every lawyer involved in civil litigation mediation. Since less than 2% of cases go to trial, mediation is where you can shine as a lawyer.

                        author

Nancy Hudgins

Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class… MORE >

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