In recent weeks I have encountered huge success in designing mediations through the use of strategic pre-mediation communications. In particular, I have gotten multiple plaintiffs and/or multiple defendants to meet separately (and at times, confidentially) by phone or in person to achieve consensus on issues of evaluations and negotiations.
As to pre-mediation of multiple plaintiffs' caucuses, plaintiffs’ counsel have met, reviewed their respective injuries (or damages) in relation to their respective liability positions, and determined mechanisms for agreed upon allocations. These mechanisms include the discussion of "reasonable verdict and settlement ranges" as discussed below among defendants. This helps develop an understanding of differing plaintiffs' evaluations where the negotiations are to proceed separately. It also promotes the opportunity for a global negotiation where agreed on by defendant(s).
As to pre-mediation of multiple defendants’ caucuses, defendants' counsel have met (with or without their corporate or insurance representatives) to achieve consensus on the following: (1) a reasonable global verdict analysis; (2) a reasonable global settlement analysis; and (3) a reasonable global settlement "goal" (
i.e., their reasonable expectation for settling the case globally). Such consensus helps validate and/or differentiate the respective defense positions. Moreover, it gives multiple defendants the opportunity for agreeing to work in either a transparent format or in a "blind" negotiating format. The former allows further consensus on global sequential offers; the latter allows consensus for independent sequential offers while affording the opportunity for having the mediator globalize the numbers or communicate them individually.
Whether with plaintiffs, defendants, or both, pre-mediation caucuses assist in opening the mediation conference itself with a greater level of understanding of the expectations of co-plaintiffs and/or co-defendants. As such, these caucuses also serve to make the mediations more efficient while affording greater opportunities for resolution.
In recent weeks I have encountered huge success in designing mediations through the use of strategic pre-mediation communications. In particular, I have gotten multiple plaintiffs and/or multiple defendants to meet separately (and at times, confidentially) by phone or in person to achieve consensus on issues of evaluations and negotiations.
As to pre-mediation of multiple plaintiffs' caucuses, plaintiffs’ counsel have met, reviewed their respective injuries (or damages) in relation to their respective liability positions, and determined mechanisms for agreed upon allocations. These mechanisms include the discussion of "reasonable verdict and settlement ranges" as discussed below among defendants. This helps develop an understanding of differing plaintiffs' evaluations where the negotiations are to proceed separately. It also promotes the opportunity for a global negotiation where agreed on by defendant(s).
As to pre-mediation of multiple defendants’ caucuses, defendants' counsel have met (with or without their corporate or insurance representatives) to achieve consensus on the following: (1) a reasonable global verdict analysis; (2) a reasonable global settlement analysis; and (3) a reasonable global settlement "goal" (
i.e., their reasonable expectation for settling the case globally). Such consensus helps validate and/or differentiate the respective defense positions. Moreover, it gives multiple defendants the opportunity for agreeing to work in either a transparent format or in a "blind" negotiating format. The former allows further consensus on global sequential offers; the latter allows consensus for independent sequential offers while affording the opportunity for having the mediator globalize the numbers or communicate them individually.
Whether with plaintiffs, defendants, or both, pre-mediation caucuses assist in opening the mediation conference itself with a greater level of understanding of the expectations of co-plaintiffs and/or co-defendants. As such, these caucuses also serve to make the mediations more efficient while affording greater opportunities for resolution.
Rodney A. Max is a principal mediator at the firm of Upchurch, Watson, White and Max. For more information visit Rodney A. Max's biography.
