Few will disagree that we are confronted with the issue of polarization in many aspects of today’s society. In the past, one might have cited to baseball’s rapid fan base as an example: if one is a Padre’s fan, they typically don’t just root against the Dodgers; they hate the Dodgers. Now, the prime example might be politics. Politics has become so divisive that it is difficult to have meaningful conversations about policies in the absence of conservative vs. liberal labels. Labeling people makes them feel attacked, which then makes them more defense. The practice of law is not immune to this disruptive trend.
Within the field of employment law, we often hear similarly polarized positions: “this is an attorney-driven case” or “defense counsel never met claim she thought was legitimate.” Over time, this has led to initial settlement demands being “out of the ballpark” and responsive offers being “insultingly low.” Adopting these labels focuses much of the dispute on counsel rather than the underlying case. Counsel assumes their opponent will fall into these polarized positions and makes a polarizing initial demand or offer.
For the majority of litigants, however, the agreement to try ADR recognizes the truism that there is no perfect case. Risk is an essential part of litigation and the most skilled attorneys are the best managers of this risk. From the plaintiff’s side, the issuance of a settlement demand prior to the date of mediation allows the defendant time to process the demand and evaluate their risk. Although more rare, a pre-mediation offer by the defendant similarly conditions the plaintiff to their risks of going to verdict. When the demand/offer is produced with an explanation supporting the monetary figure, an amazing thing happens: focus is shifted away from polarized labels and toward addressing specific risks. This is healthy debate and the type that skilled counsel can use to zealously represent their client. The beauty of mediation is that resolution can be achieved not by solving the underlying factual/legal dispute, but by assessing the risk inherent in every case.
Next time you are heading toward mediation, consider shaping the process by providing the other side a thoughtful analysis of the case and an initial demand or offer a least a week before mediation. Then its time to get down to work!