What Mediators Wish Lawyers Would Do Before the Session - Part 5: Think About What Movement Looks Like
Thank you to everyone who has followed along with this series on what mediators wish lawyers would do before the mediation session begins.
For my fifth and final thought:
Lawyers should think about what “movement” looks like before the mediation begins.
Most lawyers come to mediation knowing their opening position.
But an opening demand or offer is just that—the opening.
The more important question is: What happens next?
Before mediation, think about the potential path to resolution.
What are you trying to communicate with your first move?
How do you expect the other side to respond?
At what point might smaller or larger moves make sense?
These questions can be particularly important in healthcare liability cases.
A substantial opening demand may reflect the seriousness of the injury and the plaintiff’s evaluation of damages, but counsel should have thought about how that demand can realistically lead to a negotiation.
Likewise, a defense opening offer may reflect significant disagreement about liability, causation or damages. But if the offer is going to begin a meaningful process, counsel should have considered where movement may come from if the negotiations develop favorably.
There is another reason movement matters.
Intentional movement communicates.
Every demand, offer and counteroffer sends a message. That is why it should be intentional. These moves can signal flexibility, frustration, confidence, uncertainty, or an invitation to keep working.
Prepare your case. Know your opening position. Understand your client’s authority and expectations. Spend time thinking about how you might get somewhere both sides can live with.
Which brings me back to where this series started. Over these 5 posts, I’ve suggested that effective mediation preparation means more than knowing the facts, medicine, experts and law. Lawyers need to:
Prepare for the process.
Have the hard conversation in advance.
Understand what your client really needs.
Be prepared to evaluate risk honestly.
Identify what meaningful movement looks like.
Case preparation equips you for litigation, while process preparation readies you for resolution opportunities.
And the difference shows.
Call me today to schedule your next mediation at 407.493.0899 or book me directly on my Appointments page.
