SELECTED MEDIATION ISSUES

Each Mediation is Different

Evaluation of Case

Counsel

Personalities

Experience

Knowledge of controlling facts/law

Each Mediation is Different (cont.)

Clients

Plaintiff’s reason for litigation

Lottery

Principle

Other needs

Each Mediation is Different (cont.)

Defendant’s approach

Economic

Personnel issues

Principle

Each Mediation is Different (cont.)

Insurance

Which carrier

Inside or outside representation of carrier

Merits of Case Merits of Case

Substance Type and Merits of Claim

Documents

Experts

Damages

Types of Damages

Merits of Case (cont.)Merits of Case (cont.)

Court

State

Federal

Jury

Witnesses

Credibility

Two Recurring Mediations HurdlesTwo Recurring Mediations Hurdles

Initial Demands/Offers

Irrational Plaintiff Demands

Irrational Defendant Responses

Breaking Impasse

Various Approaches

Irrational Plaintiff Initial DemandsIrrational Plaintiff Initial Demands

$1.0 Billion vs. ($-3.0) Case

Effect on Process

Cannot do “American Style Negotiation”

Plaintiffs argue “I have been more reasonable.”

Defendant never gets to “best number”

Creates atmosphere of “no settlement”

Plaintiff Needs to Start with “High Number” But One With a Rational Basis

Plaintiff should explain how and why opening number selected

For Example:

Back Pay – ID Comparables

Plaintiff Needs to Start (cont.)

Compensatories – ID Effects of Treatment

• Medical Issues

Punitives – Listing of Awards in Jurisdiction

Possible Mediator Approaches to Irrational DemandsPossible Mediator Approaches to Irrational Demands

Stop Plaintiff Before Irrational Demand Made

Virtual Negotiation

Use Conditional Demand/offer

Mid Point Issue

Possible Mediator Approaches (cont.)Possible Mediator Approaches (cont.)

Make Interim Mediator Proposal

Base Number

Base Range

Breaking ImpasseBreaking Impasse

Possible Approaches

Single Party Cases

BATNA (“Getting to Yes”)

Right Hand vs. Left Hand Analysis

Hypothetical- for AnalysisHypothetical- for Analysis

Plaintiff is Terminated Employee Who Claims Retaliation Under Section 1981

Demands $1.0 Million

Damages claim weak – has fully mitigated with new job

Defendant has fairly high risk of liability

Right Hand – The Defendant AnalysisRight Hand – The Defendant Analysis

Defendant’s Attorneys Fees - $200,000

Plaintiff’s Attorneys Fees - $250,000

Realistic Damages Award - $50,000

Possible But Unlikely Award - $1,000,000

Economic OutcomeEconomic Outcome

Cost to Defendant - Best Case - $200,000

Defense fees

Cost to Defendant - Likely Case - $500,000

Defense fees; Plaintiff fees; damages

Cost to Defendant Unlikely but Possible - $1,500,000

“What is correct Settlement Amount?”

Left Hand – The Plaintiff AnalysisLeft Hand – The Plaintiff Analysis

“Likely Range” of Jury Verdict - $50,000 to $1.0 Million

Plaintiff Risk Rate – 75% chance of winning for $50,000

Result of $50,000 Verdict

- ($ 10,000) – Costs

- ($ 15,000) – Taxes

The Plaintiff Analysis (cont.)The Plaintiff Analysis (cont.)

Net: $15,000 to Plaintiff – Plus 3-Year Delay

Risk of Loss 25% plus Pay Defendant Costs - $10,000

Risk of AMT Treatment

Result of $1,000,000 - Verdict

250,000 - Fees Award

$1,250,000

(500,000) - Fees and Costs Payment

(375,000) - Taxes

$375,000 - Net to Plaintiff

- 3-Year Delay

- Risk of Loss

- Very Low Probability of Success

- 25% Probability of 0

- Punitives Treatment

Other Single Plaintiff Settlement Approaches Other Single Plaintiff Settlement Approaches

Long Sessions vs. Deadlines

Caucus Merit Assessments

Baseball Arbitration

Allocations to Compensatory Damages

Other Single Plaintiff Settlement Approaches (cont.)Other Single Plaintiff Settlement Approaches (cont.)

Treatment of Some Types of Compensatory Damages as Non-Taxable

Assumption of Risk

Each Side Selects Number in blind and agree to split the difference if within “X” of each other

Mediator’s Final Proposal

Draft of Controlling Terms

PRAYERPRAYER

Wants vs. Needs

Rapport

Class/Multi-Party ArbitrationsClass/Multi-Party Arbitrations

Mock Trial

Single Issue Trial

Mediator Draft of Provisions

High-Low With Arbitration

Detroit Edison, Coke

Class/Multi-Party Arbitrations (cont.)Class/Multi-Party Arbitrations (cont.)

Coupons

Winn Dixie, Ingles

Reverter Pools

PPG

Size of Pools Based on Number of Claims

Sears

Class/Multi-Party Arbitrations (cont.)Class/Multi-Party Arbitrations (cont.)

Dixiland Approach

Claims made before relief established

Use of Mediator’s Proposal

Don’t Quit