"A Good Settlement is When Nobody is Happy." Right? Wrong.
By Steve Goldner
“A good settlement is when nobody is happy.” How many times have you heard that said? Well, I take exception to that notion. Primarily because it’s the wrong standard and a very negative expression of the mediation process.
Efforts to settle a case ought not to be judged by a “ happiness” index. I truly believe that the hallmark of every successful mediation is “ fairness”. Both sides want to be treated fairly, albeit for different reasons. A plaintiff who feels he has been treated fairly by the process is obviously more inclined to settle. Happiness is a subjective emotion which the defendant can do little to address, unless it’s a by-product of being fair. For the defendant, it’s the flip-side of the same coin. The defendant would be “happiest” if it didn’t have to pay any money at all. (Just like the plaintiff would prefer to have not been injured.) Those cards have been dealt and are no longer in play. So, what’s the best way to resolve your case, regardless of which side you’re on?
Be fair. It’s not conducive to a successful outcome for plaintiff’s counsel to talk in opening about hitting a home run or ringing the bell in the case at hand. You may well do just that, but that’s for the courthouse—not the mediation setting. Likewise, it is not helpful for defense counsel to dwell on the summary judgment motion that’s in the works or the potential for a defense verdict. It stands to reason that good attorneys are acutely aware of these possibilities and you have probably already talked about these things anyway. After conducting hundreds of mediations, I can promise that these kinds of comments don’t send the message that you intend to negotiate fairly. It’s very difficult for the plaintiff, or an adjuster, to accept that they are about to be treated fairly when the day begins with thinly veiled threats.
Invariably, one or both sides will make mention of wanting to be fair. It’s amazing, however, how quickly that notion can disappear when the opening demand is absurd or the initial offer is ridiculous, by any standard. Although the temptation is strong to respond in kind, remember why you and your client came to mediation in the first place. Don’t waste a lot of time sending “messages”. Be fair, even when the opposition seems to have lost its valuation compass. You will find that your mediations are shorter in duration and more successful overall.
At the end of the day if you are indeed “happy” with the outcome, I’ll bet you a dinner (or drinks…) that you would have to admit that both sides acted fairly.