Trenam’s Mediation Newsletter: Analyzing Settlement Parameters in Advance
In addition to providing the client a detailed overview of the mediation process, it is incumbent on counsel to prepare the client on how best to achieve the ultimate goal of mediation, a favorable settlement. With this in mind, it is very important for counsel to meet with the client and discuss the settlement parameters to be considered prior to the mediation. Managing client expectations is very important in this process. While the strength of the parties’ positions will influence settlement parameters, the client expecting to receive everything he or she is seeking during the mediation process will most likely leave the mediation without a settlement or leave the mediation with a settlement with which he or she is unsatisfied. Settlement involves concessions and your client needs to understand this.
Setting parameters on what an acceptable settlement may look like provides a game plan to stick with during the process and will prevent clients from second guessing themselves after the mediation process, whether a settlement is reached or not. While there is more than one approach on setting parameters, the most basic involves setting a scale of possible acceptable outcomes for settlement ranging from very good to not good, but acceptable. While dollars and cents are a key consideration, there very well may be important non-monetary considerations to consider and these issues should be discussed with the client when determining settlement parameters. It is easy to settle a matter at mediation when the terms fall into the very good range on your parameters. Likewise, it is easy to refuse a settlement that is clearly below the low end of your scale. Settlement or not, though, it is the time spent and thought that went into the bottom of the scale that will allow your clients to feel that he/she stuck to the game plan and that while they did receive everything they had hoped for, they can be confident that they did not cave into pressure or otherwise make a rash decision during the mediation process.