Average settlement offers during mediation are an important consideration when a party is considering using mediation to settle a lawsuit.
Combining this knowledge with other tips and tricks for settling a lawsuit through mediation can ensure that a party is prepared to tackle a mediation during a lawsuit and achieve the best possible outcome. Having a researched and thorough plan heading into a mediation can also give a party the peace of mind that they have given settlement the best possible try and to move into the lawsuit confidently. This article will discuss the average settlement offers in mediation as well as other tips and tricks to have the best mediation plan possible.
Before discussing the strategies for preparation in mediation, it’s important to understand the benefits of using mediation to potentially settle a lawsuit over regular settlement discussions and proceeding with litigation. These benefits include:
Control: Mediation allows the parties to control the outcome of the dispute. When a dispute goes to litigation, the parties lose control over the outcome to the finder of fact.
Voluntariness: The parties can withdraw from mediation at any point and are not bound to the process as they would be in litigation.
Compliance: Parties are more likely to comply with an agreement that they came to together than a judgment handed down by the court.
Confidentiality: Mediations are confidential and allow the parties to settle disputes without a pubic record. If a lawsuit has begun, the parties may have to file a statement that the parties have agreed to a settlement, but it still allows a degree of privacy.
Speed: Mediations will settle a dispute faster than litigation, as it often takes months or years and mediation can be done in a day or two.
Relationships: Mediation allows the parties to come together to find an agreement that works for both parties, while litigation forces the parties to be adversarial.
Empowerment: Unlike settlement offers and litigation, mediation allows the parties to choose and control the outcome rather than just speaking through their lawyers, which gives the parties a greater sense of empowerment moving forward.
These benefits set mediation apart as a great possibility to secure a mediation for the parties. While there are different rates of success for mediations, it is common for mediation to at the very least begin the bargaining process for the parties, In cases where the parties are already preparing for litigation and have done discovery, cases are more likely to settle in mediation because the parties have a good idea of the outcome of the case and can effectively negotiate. And even in cases where mediation is not successful during the formal mediation process, there is still usually a higher chance of settlement because the parties are aware of what the other party would need to settle. This makes mediation an effective option for parties hoping to settle.
Average Settlement Offers:
While every case and dispute will be different, there are some truths about settlement offers that can help the parties understand where the offers are coming from and how they can effectively counter these offers and bring the settlement more into line with what they are hoping. An important consideration when thinking about average settlements and creating a reasonable plan is that the plaintiff and defendant will be approaching the settlement differently. The plaintiff will be hoping to get as much money as possible out of the settlement, while the defendant is hoping to give up as little money as possible.
The other truths to consider are:
- The other side does not know all the facts that affect the offers.
Even in mediations that happen late in discovery, both sides will be unaware of the underlying interests that will affect the way that each side offers and approaches the settlement. Keeping this in mind will help a party understand and react appropriately when there is a surprising offer.
- The first offer will usually be very low or high.
Because the parties are wanting to avoid paying more or losing out on money and because of the interests at play as discussed in the first point, the first offer is going to be very low if it comes from the defendant, or very high if it comes from the plaintiff. Parties will often offer very conservatively to show the other side that they are not willing to give too much too quickly.
- The outcome will be somewhere in the middle.
The plaintiffs will likely leave with less than they wanted, and the defendants will likely pay more than they wanted to pay. This is because the parties will start far apart and make their way toward each other as the day moves on.
- The mediation can take a long time.
At the beginning of the day, the parties will be less likely to move quickly toward each other because they want to remain strong; however, as the day moves on, the parties will start to see where a settlement is headed and will either begin to move toward settlement or decide that they are not going to be agreeable.
Understanding these common threads through mediation settlements can help a party feel prepared for mediation, combined with the tips mentioned below.
Tips for Preparing for Mediation:
When a party has a mediation coming up, they will often have a lot of questions. For many people, mediation feels very different. Litigation is common and most people understand that they should dress nicely and speak respectfully to the judge. However, mediation is not as common, and it can feel very informal. The rest of this article will focus on answering common questions about mediation and providing ideas to consider as the parties move toward mediation. First, this article will go over the basics of mediation for people without much experience.
These basics include:
The mediator is a neutral third party that will help the parties agree. They do not work for either party and cannot make a binding decision. They will encourage the parties to consider agreeable settlements and help the parties understand where the offers are coming from.
Mediations are not as formal as litigation. The relationship to the mediator tends to be more like peers than a superior. The mediation will also often take place in a conference room or a set of rooms, rather than a courtroom. It would still be good to dress in business clothes if possible to show respect to the mediator and the other parties.
Depending on the mediator’s style, the overall feeling of the mediation may be competitive or cooperative. However, even in cooperative mediations, there will still be a competitive nature when the parties are negotiating because each side is hoping to achieve the best possible result.
The way a mediator will run a mediation depends again on their style, but many mediations will start with an opening by the mediator to the parties to explain the rules and how the day will go, and then negotiations will start. Negotiations may take place in the same room, or the mediator may split up the parties and speak to both of them separately to decide how to help the parties move toward settlement.
Additionally, there are some tips to consider when preparing for mediation.
These tips include:
- Evaluate the Case
Going into mediation with an accurate evaluation of the case will help the parties be realistic with offers and have a plan to be able to achieve a settlement. This includes understanding how much a party can give and evaluating what the other parties may need to feel comfortable with a settlement.
- Be Creative
Mediation allows the parties the option to be creative with the ways that they settle their disputes. Litigation is often limited to injunctive relief or monetary awards, but mediation allows the parties to find creative ways to make each other whole. This can include apologies, positive references, and other relief that would not be provided by a court. Having a creative solution that would allow the other party to pay less money or take less money but would still give something of value can procure a settlement.
- Know when to Walk
There may come a point in a mediation when the bargaining point is not moving in a direction that one party needs and that party needs to know when it would be better to chance litigation or further settlement discussions past mediation that it would be to continue.
- Be Patient
While it may seem like mediation is taking a very long time or that the other side is moving slowly, it is important to not try and rush a settlement by giving too much too quickly. It can be strategic to make a big move and ask the other side to follow, but it may not always work in a party’s favor.
Mediation can be a fantastic resource to help parties settle before litigation, especially in cases where discovery has changed or shifted a party’s position and in cases where the parties are already close to a settlement but need help agreeing to a settlement. While no two settlements are alike, there are some basics at the heart of each mediated settlement that must be considered when approaching a mediation. Finally, it is important to understand the process and be prepared for mediation to ensure an easy process moving forward and give the parties the biggest chance for a settlement. While mediation may not always result in a settlement, it does give the parties a chance to meet and consider what a settlement could look like, which may encourage the parties to come together later for a settlement.