Mediation as a Platform For Settlement Negotiation

Certainly, when parties are otherwise unable to reach consensus on a settlement, the decision to utilize mediation as another method to enhance discussions is oftentimes a positive choice. Mediation offers the parties a new “playing field” where each side can arrive with a new perspective on resolution. Mediation offers the opportunity to include a third party neutral to assist and facilitate those discussions and hopefully presents the parties with an equal and balanced format to allow the bargaining process to proceed without undue pressure. But the approach to the mediation by the parties is important. For a mediation to be successful, everything should be on the table and up for discussion. Flexibility should be acknowledged. The goal of resolution should be presented as a mutual objective.

It is fine to initiate a mediation with a settlement position that is realistic and supported by facts and law. It is another thing to start with a demand that is unrealistic and excessive. Typically, once a mediation starts out with an impracticable demand, it makes the other side challenged to find a response that is productive. Therefore, sometimes these opening demands only delay positive discussions. Similarly, an attitude of “hard bargaining” with negative behavior can typically lead to negative responses or can make it difficult for the other side to counter. Parties should avoid threats, demands or warnings during the process. Undeniably, that behavior typically results in reactions that are negative and non-productive. Many times, such behavior can call into the questions of the parties’ rationality. If a participate appears not to be acting fairly during the process, the likelihood of resolution will be low.

As is often said, negotiation involves a bargaining “process”. It is not a one-time event. The process calls for time, deliberation, and a back and forth approach that allows all parties involved to participate, to have a sense of control and oversight. The process also requires a sense that the parties are building trust as they are building solutions. Much of that trust appears when each side is open to creating trade-offs and compromise as compared to intractability. Generally, the best negotiations reach a mutual conclusion through small deliberate steps rather than large jumps. The back and forth in that process may be tedious but sometimes it is necessary, again as a methodology to build trust in the process. To truly be effective, offers should invite counteroffers. A party should not be put in a position to bid against itself. Offers need to be reciprocal to keep the process moving. Where mediations often fail are when the parties arrive with a “win-lose” or “take it or leave it” philosophy. If the opposite party will not respond to an offer, then they are failing to demonstrate the needed spirit of compromise, and therefore the mediation may be unsuccessful. Certainly, there may be a sense that any offer suggests weakness. But again, without a demonstration in good faith that the parties are present to reach a deal, it is inherent that offers need to be made by both sides. It should not matter who goes first or last. The attitude to create a successful mediation must be to find a “win-win” solution. If a dispute settles without further time, expense, emotional energy and impact to productivity for the parties involved, everyone will be declared a winner.

For thirty years, Scott Zucker has acted as outside legal counsel to a variety of privately held and publicly traded businesses involved in multiple industries. His legal services have ranged from employment, real estate, construction and corporate consulting to representation of companies in the litigation of their financial and business disputes. Scott’s goal is to utilize his legal and business experience to foster the use of Alternative Dispute Resolution to help parties reach resolutions without the time, effort and cost of court litigation. Scott can be reached at