Alternative Dispute Resolution
greater than twice the amount that you reasonably believe the case to be worth. Never make it exactly twice the amount because defendants already think that the plaintiff ’s demand is twice what they seek. If you genuinely have a policy limits case, DO NOT start at policy limits; start above policy limits. Otherwise you have nowhere to go. On the other hand, if your best case does not exceed the statutory cap plus whatever economic damages you can fairly put on the blackboard; do not tender an initial demand higher than the most you can recover. Why? Because you lose credibility.
Q. Is there anything that we should hold back from the Mediator at any time during the Mediation?
Admittedly, this approach is somewhat controversial.
Te best Mediator in the State, Te Honorable Howard Chasanow, employs opening statements and he finds them helpful. I think he has an exceptional level of gravitas that allows him, in ways not available to other Mediators, to relieve any hostility that may be generated during an opening statement. My best advice, then, is that unless Judge Chasanow is your Mediator, avoid opening statements.
Q. How high or low should be the plaintiff’s opening settlement demand?
A. My preference is that no demand be tendered prior to a matter that I mediate. Again, this is a personal preference. As you know, sometimes an exceptionally high demand will scare off defendants and result in either a cancellation or postponement of a Mediation or a failure to agree to mediate at all. Consequently, I would recommend that you only tender a settlement demand prior to Mediation if the defendant insists upon it. Otherwise, allow the Mediator to guide you to an appropriate opening demand figure after he or she has had an opportunity to discuss the case with you and with the defendants. If you must tender a settlement demand prior to Mediation, in general I would recommend that it be something
26 Trial Reporter / Fall 2010
A. No. If you have selected a Mediator in whom you trust and you like, this should not be necessary. Te best metaphor I can provide you for a Mediation in the eyes of the Mediator is as follows: Have you ever stood in the hallway of your office suite between two offices separated by a wall? Tere are two colleagues of yours, one in each office. You can see and speak with both of them, but they cannot see each other and they cannot hear each other. Tis is a unique perspective and, frankly, a time limited position of power. Te Mediator knows what you are telling him or her. Te Mediator knows what the other side is telling him or her. If you trust the Mediator, you must allow that person to do his\her job. You must allow him\her to guide you through and help you make each movement. Frankly, I regard the demands and offers that go back and forth as simply a passport to discuss the case with the other side and then back again. My job, as indicated at the outset, is to determine the highest number that the defendant has come to the Mediation prepared to pay to get beyond it. Te Mediator can only do this if you cooperate and do not fight his or her judgment as to how to proceed step by step. If you cannot do this, then you should have picked another Mediator.
Q. Should we shield our clients from the Mediator during the session or at certain times during the session so that they will not be unduly influenced?
A. Never. Tere are some of you who prefer that your clients remain outside the Mediation discussions because of the concern that they will be unduly influenced by the Mediator’s statements, opinions and judgment. Personally, I will not mediate under these circumstances. It is the client’s case; not yours. In my judgment, clients have the right to and must be able to fully participate in the Mediation. If you are
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