Page 2 - Alternative Dispute Resolution

S2 | MONDAY, NOVEMBER 16, 2015 | Alternative Dispute Resolution
| NYLJ.COM
Pre-Mediation Discussions Maximize Chances of Successful Settlement
sonable first offer in response to the opening demand before agreeing to mediation. The term “reasonable” as used here qualifies the demand so as to avoid perverting the exer- cise. For instance, a defendant that counters a seriously injured plaintiff with an offer of a few hundred dollars does nothing to facili- tate settlement and instead drives the parties further apart.
A reasonable response to the plaintiff’s opening demand will give the parties a first true look into the other party’s intentions. For example, a hypothetical plaintiff with a difficult liability case would know by a very low offer that the defendant has no intention of meeting a multi-million dollar “ask” and the parties can then make an informed decision about their willingness to mediate. An agree- ment to mediate with such a wide gap and low offer sends a clear signal that the high opening demand is flexible. Likewise, in a case where a horribly injured plaintiff makes a multi-million dollar demand, the defendant’s response will go a long way to revealing whether mediation offers a true chance of success. A refusal to make a pre-mediation offer at all generally means that the defendant is not at the point where settlement is realistic. In the case of such a refusal, the plaintiff’s best course of action would be to decline mediation until it becomes ripe, if ever. In the alternative, a reasonable first pre-mediation offer demon- strates that the parties are prepared to work in good faith and a mediator can potentially bridge the gap rather than spending valuable time at mediation trying to define the distance of the gap itself.
An opening round of negotiations also clarifies insurance issues that surround the settlement of any significant injury case. Set- tlement of an injury or malpractice case does not just require a meeting of the minds of the plaintiff and the defendant, or an agreement of their respective counsel. Rather, settlement requires that the parties, the attorneys, and the defendant’s insurer(s) all agree on a deal. Cases involving multiple defendants compound these insurance related issues. In complex cases, each defendant often has separate primary and excess insurers, all bearing separate potential responsibility for the plaintiff’s claims. Here, the resolution of insurance issues and percentage allocation amongst the defendants alone may require a separate mediation. Conducting a mediation with a plaintiff in advance of the resolution of the intra-defendant insurance issues is
Alternative Dispute Resolution
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BIGSTOCK
BY JOHN D. ZAREMBA AND DANIEL GLUCK
M ediation can be a litigator’s most effec- tive tool in bringing about the settle- ment of an injury or malpractice case.
When used improperly, however, mediation can defeat its very purpose and instead drive the parties further apart. Failed mediations come with substantial risk, as they often
JOHN D. ZAREMBA is a founding member and DANIEL GLUCK is a partner of Zaremba Brown.
result in needlessly prolonged litigation and damaged relationships. Moreover, a negotia- tor can prematurely divulge trial strategy by reaching for a settlement that wasn’t possible from the start.
The “classic” and often failed mediation pattern in New York negligence practice starts with one party requesting to “mediate,” which is code for asking if there is interest in trying to negotiate a settlement. Plaintiff will make a settlement “demand” and the parties will then head into a costly and time consuming mediation prior to the defendant making an offer. At this stage, neither party realistically knows how the other side views the case.
Consequently, the parties start settlement negotiations at mediation essentially from scratch. While this process can start with pure intentions on both sides, it must be understood that some cases simply cannot settle and it is best to make that determina- tion before expending time, money and energy pursuing an unreachable goal.
Mediation works best when used to work through and resolve well-defined issues. To achieve this dynamic, civil litigants should require that at least one good faith round of negotiations occur before mediation. In the injury and malpractice arena, the plaintiff should insist that the defendant make a rea-
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Inside
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S10 Chart a Course
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BY CAROLINE ANTONACCI
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