1. Crunch the numbers. Work out the costs to you and your opponent of your best case scenario (you recover everything claimed + your costs of the litigation) and your worst case scenario (you get nothing + pay your opponent's costs of the litigation).
2. Get Real. Take a step back, assess the merits of your case and work out the most likely outcome, which will probably fall somewhere in between the best and worst case scenarios. Use this to identify the range in which you would be happy to settle. If you want to get technical on settlement strategy- and see a graphical illustration of the optimal settlement zone-check out our series of blogs on the art of settlement and game theory here.
3. Think outside the box. What are you really hoping to achieve from the mediation? Whilst damages are often sought in court proceedings, parties to mediation have the flexibility to agree to a wider range of solutions to the dispute which simply could not be ordered by a court. For example, they could enter into a new agreement to regulate their relationship going forward.
4. Give and take. Work out if there are any easy gives which will encourage the other party to settle without breaking the bank. Sorry can be the hardest word but it can also be the cheapest! It is always worth having bargaining chips ready to throw in to get the negotiations moving. Equally, are there things you need from the other party which are non-negotiable? Know where your red lines are.
5. Help is at hand. Remember, the mediator is a neutral facilitator- they are there to help make the deal happen. Build a relationship with the mediator before the mediation and maintain good communication with them throughout the day.
6. Set the tone. Consider carefully if you wish to make an opening statement. It can be an opportunity to get your side of the story across - particularly if the dispute has affected you personally. It can also give you the chance to knock your opponent's confidence in their case and address any obvious weaknesses in your own-before your opponent does. However, be mindful that opening statements can backfire by leading parties to become entrenched in their own position before the day has even started or they may be ill advised if relations have broken down so much that putting parties together would torpedo any deal.
7. Patience is a virtue. Expect and be ready for a long day- it may take hours for the parties to consider each other's offers. However, setting a deadline for a final agreement to be reached can help focus minds when the finer points of detail are being thrashed out.
8. Be prepared. Have a template settlement agreement ready which can be adapted depending on what is agreed during the day. This should help keep the momentum going once the headline terms have been agreed. Make sure that the representatives for both parties are authorised to agree a settlement. Deals can fall apart if a binding agreement is not signed on the day.
9. Pick your team. You reach a log jam- what do you do? Mix it up and try lawyer or principal only meetings to break the deadlock.
10. Flex it. Start with a plan but be ready to go with flow to achieve the deal you want. Don't be afraid to be creative!
This was first published by RPC in August 2019. Please find the original article here.
For further reading please find our mediation article here.