GOOD FAITH AND THE “GOLDEN RULE” AT MEDIATION

By: Bob Worden, Esq. | July 2020

Authors preface: Mediation is indisputably the most cost-effective and efficient way to resolve disputes. Moreover, there is positive energy and cautious optimism in the mediation process, which every participant enjoys. Especially, now in the time of Covid, we enjoy seeing people “face-to-face”, even if it is on the computer or mobile device. The enhanced communication of the mediation process increases the ability to view the issues from the perspective of the other parties and the mediator. 

Be transparent 

At mediation, It is better to be transparent from the start, lay your cards on the table and show good faith with the neutral and opposing counsel. Unwanted surprises can sometimes derail a settlement.  

The number one surprise commonly encountered is when a party appears at mediation with a settlement position that is so high or so low as to be unreasonable. An outrageous starting point isn't so bad if the party taking that position becomes more flexible during the mediation and brings the position within the realm of reason. But last minute details may very well derail any chance of a quick settlement. Instead, the revelation becomes the main subject of discussion as the mediation continues. 

The mediator's function is to help the parties sort through the facts of the case.  His or her success as a mediator depends upon treating everyone in the room with equanimity. It's difficult enough to prepare for a mediation, but finding out that the playing field has been changed at the last minute makes things that much more difficult. 

Good Faith

The “Golden Rule” states you should “treat others as you would like to be treated”

and is especially applicable to all mediations. Good faith in settlement negotiations includes how we handle the entire process, not just being willing to pay a reasonable settlement number. All parties have an ethical obligation to bargain in good faith. This, of course, does not always happen, which raises question about such unconventional negotiation tactics.  

The principle of good faith must be adhered to when negotiating at mediation. There is little to be gained by disclosing new information that may significantly change the value of the case. in fact, it might force a case to court that could and should be reasonably settled early on. The party springing the surprise during negotiations may actually end up being the one most surprised at the end of a long and expensive trial.

Be reasonable and respectful

People who frequently mediate find it useful to maintain a reputation for predictability and consistency. This makes it easier to negotiate with all parties and reach a result acceptable to the client. Taking realistic positions and not wasting time usually makes the people on the other side of the table more forthcoming. When somebody likes dealing with you, it makes it easier for them to offer you what you need. Some of the most effective people take a reasonable position and stick with it. If it turns out that the position has a weakness, they will listen to reason. If their position is strong, they will stick with their position. Rationality, not emotion, drives effective strategy.

Mutual respect is essential. When people spend several hours at mediation only to find that there was never any settlement possibility from the get-go, they are universally unhappy. Delay and obfuscation make the other side unwilling to make any deal. Consider being up-front with your position well prior to the mediation day, so the other side has time to consider it and to consult with necessary authorities. The need to speak with supervisors is particularly true when dealing with insurance carriers. Any settlement authority given by those supervisors is based only on known information. If you appear at mediation and for the first time disclose a substantial lien, a new injury or recent surgeries, many times the insurance representative at mediation cannot get the additional settlement authority needed, the case can't settle, and preventable delay ensues. 

Don't “fall in love” with your case 

Don't let emotion color your position. Any jury may disagree with your idea of justice and any trial judge may refuse to admit evidence essential to your position. Maybe you need to step back, talk with colleagues, and see if your expectations should be adjusted. 

Many dealing in the law recognize the “Golden Rule” as akin to Karma; “What goes around comes around.”  This may not always be true, but regulars at mediation know that being up-front yields benefits in the long run. Be prepared, professional, considerate, and let the other side know that there is nothing personal in the position you are taking. A mutual attitude of cautious optimism makes mediation both enjoyable and effective. Building positive relationships with the opposition makes it much easier to settle cases in the future.  

One last aphorism to ponder when you are on your way to the next mediation: “You can catch more flies with honey than you can with vinegar.”  

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Bob Worden, Esq. is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and concentrates on high-exposure personal injury and medical malpractice cases.  In 2019, for the second year in a row, Mr. Worden was voted a Top Ten Arbitrator by the New York Law Journal Annual Best of Survey. He is available to mediate major injury personal injury claims and medical malpractice cases throughout New York State.  He is also a member of Lawrence, Worden, Rainis & Bard, P.C.

Meet the Author

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.