By Lawrence A. Huerta
One of the most difficult jobs of an advocate is making a strong opening offer that generates a reasonable counter-offer. There are no standard formulas, so how is a strong and realistic opening offer calculated? In the context of litigation, when should an opening offer be conveyed? Conventional wisdom is to open with an extreme offer to test the other party and to explore their flexibility. Unfortunately, if the opening offer is perceived as extreme, it can lead to an early breakdown in negotiations. Another piece of conventional wisdom is to make a “throwaway” offer without any reasonable expectation of launching a productive negotiation and for the primary purpose of probing the other party’s willingness to negotiate in a certain range. In 26 years of mediating litigated cases, throwaway offers have been the source of many early stalemates or, at the very least, extensive time devoted to bringing the opening offer into a reasonable range. In the worst cases, throwaway offers can poison an entire negotiation by negatively influencing all remaining counter-offers, including final offers.
Mediation works. It is an effective means of dispute resolution for any dispute not requiring a judicial or third party determination. It provides a forum and an atmosphere in which parties gain understanding, become understood, and work together to explore options for resolution. By resolving disputes in mediation, parties determine for themselves what is important and, ultimately the outcome of the situation. While the benefits of mediation vary somewhat depending upon the nature of the dispute, and model of mediation applied, the following are some of the benefits typically associated with mediation:
RECOGNITION: In hearing and being heard in the mediation forum, parties gain the understanding of the other parties point of view, and an enhanced opportunity to be heard and understood themselves.
EMPOWERMENT: Parties are empowered to decide for themselves whether and how they would like to resolve a situation. This self-determination aspect of mediation often corresponds to higher aspirations of how individuals and businesses want to conduct their lives and do business generally.
SPEED: In resolving or narrowing disputes through mediation, parties avoid the delay of a third party or judicially decided outcome.
ECONOMICAL: In resolving or narrowing areas of disputes through mediation parties save an enormous amount of time, energy, and expense associated with protracted conflict and litigation.
CONFIDENTIALITY: While lawsuits are matters of public record, what transpires at a mediation can be kept confidential by agreement. Whether a mediation occurs before or after filing of a lawsuit, any form of communication generated at a mediation is normally inadmissible evidence. In California, communications generated at a mediation are inadmissible and to be kept confidential under Evidence Code section 1119.
QUALITY OF SETTLEMENT: Studies indicate parties entering into voluntary agreements through mediation are far more likely to adhere to and fulfill commitments made in such agreements than they are with judicially imposed resolutions.
REALITY CHECK OPPORTUNITY: In a private caucus, mediation can afford the opportunity to communicate important “reality check” information that may be easier for a client to accept from a neutral.
AVOID BAD OUTCOMES: Through mediation, parties avoid both the “win-lose” and “lose-lose”, outcomes associated with litigation. Many parties who “win” in protracted litigation often find the overall time, energy, and monetary commitment associated with litigation comes at an enormous cost and loss. Those who lose in litigation surely feel even worse about such an outcome. Mediation can spare parties from all of this and enable them to move forward from disputes efficiently and effectively.
The foregoing are just some of the compelling reasons to mediate disputes. Moreover, there is seldom any serious downside to mediation. While some may hesitate “to put their cards on the table” in mediation, in this era of discovery driven litigation, the old “trial by ambush” days of civil litigation are increasingly becoming a thing of the past. Mediation works not only because it focuses on the parties= own interests and agendas, but also because it provides the opportunity for parties to move beyond disputes efficiently and chart their own future.
* All republication rights are reserved. Mr. Huerta is a Mediator, Arbitrator, and Lawyer in downtown San Diego, specializing in Mediation of Business, Employment, Insurance, Intellectual Property, Real Estate, and Securities matters. Mr. Huerta graduated from Michigan Law School and was admitted to the California Bar in 1983. For any questions or comments about this article, please call (619) 236-7944 or e-mail to huertala@pacbell.net. Please also visit firm website at www.HuertaMediation.com.
This article was originally published in the March 2019 issue of For the Record, the SDCBA’s publication for new lawyers.