THE BEST AND WORST WAY TO WALK INTO A MEDIATION
The worst way to walk into a mediation is the way most people do it. The other side has really nothing to lose by not settling with you. The other side woke up that morning relaxed and had their coffee like normal and casually read the paper. There are no consequences to them for not settling the case.
The best way to walk into a mediation is when the other side has a lot to lose and worry about if they do not settle the case during the mediation that day. They woke up being really concerned about what they will be facing if they do not get this off of their plate. They know we are not going away without a fight. Whenever possible, we have maneuvered the case where the other side has a hearing scheduled on my motion for soon after the mediation on something that will be unpleasant to them. This can be a discovery motion or various other types of motions. They know that they will have to pay their lawyer more attorney’s fees to attend the hearing. They know that, if we are successful, they will have to pay my attorney fees for attending that hearing. They are also worried about the Court granting my Motion for Summary Judgment, which is a quick resolution to the case. If possible, we have filed and/or scheduled the hearing on the Summary Judgment for soon after the mediation so that the other side has a lot to worry about that day if they don’t settle.
Our firm calls this creating leverage. We always look for ways to gain leverage on the other lawyer and party, which can cause them to give you what you want in the case.