In-house counsel and claims professionals evaluate thousands of cases each year and make decisions concerning which cases to potentially take to trial, which to settle soon after a lawsuit is filed, and which to settle before a lawsuit is even filed. In most cases, counsel and claims professionals prefer to mediate in order to avoid the expensive costs of litigation. This article explores the tactics and tools for a successful mediation.
This document discusses strategies for successful mediation of insured claims. It notes that mediating insured claims requires a different approach than other types of disputes due to different participant dynamics. Key strategies discussed include:
1) Ensuring adequate information exchange between parties so that valuations are justified and informed. Withholding information risks evidentiary issues and bad faith claims.
2) Conducting objective case valuation and risk analysis using techniques like decision trees to assess likelihood of various outcomes and compare to similar past cases. Misvaluation of claims often leads to rejected settlement offers parties later regret.
3) Encouraging frank discussion of case strengths and weaknesses rather than relying solely on positional bargaining, as insured claims mediation often devolves
The document provides guidance on preparing clients for mediation. It emphasizes that clients must understand the purpose and process of mediation, as well as the mediator's role. Specifically, clients should know that mediation aims to facilitate voluntary agreements through open communication and problem-solving. The mediator manages the process but does not impose solutions. Effective preparation of clients helps ensure they are informed and able to meaningfully participate in mediation.
The document discusses considerations for companies when mediating employment law disputes. It notes that mediation provides an opportunity to objectively assess case strengths, weaknesses, risks, and costs of continuing litigation, which can lead to settlement. However, mediation does not require settlement. The document outlines factors that can increase the likelihood of settlement through mediation, including selecting an experienced mediator, having appropriate representatives present, and mediating at different stages of litigation, each with their own dynamics. Early mediation before positions harden is discussed as one option that can motivate companies seeking a quick resolution.
Part I What Every Executive Should Know About Dispute ResolutionRBCG1
This document discusses alternative dispute resolution options for resolving business disputes, focusing on mediation and arbitration. It provides information on four dispute resolution processes - mediation, arbitration, negotiation, and litigation. Mediation involves a neutral third party helping parties reach a mutually agreeable settlement. Arbitration involves a binding decision by an arbitrator. Negotiation involves direct discussions between parties. Litigation involves a public, adversarial process where a judge decides a winner. The document emphasizes that mediation and arbitration are better than litigation when future relationships are important.
Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
This document provides an overview of alternative dispute resolution and litigation for business executives. It discusses three key points:
1. Uncertainty from disputes can damage a company in many ways such as making lenders less likely to lend. It is difficult for executives to separate disputes from their personal and professional roles.
2. Most civil lawsuits settle before or during trial to avoid high costs and uncertainty. Effective pre-trial discovery is important for determining settlement parameters.
3. Studies show that plaintiffs who reject settlement offers usually fare worse financially at trial, while defendants who reject offers risk much larger losses if they receive an unfavorable verdict. Trials are high-risk gambles for both sides.
The document discusses mediators' perspectives on legal representation and achieving substantive justice in mediation. It outlines debates around whether mediation can deliver substantive justice or just procedural justice. The document also summarizes researchers' interviews with mediators, who expressed that achieving substantive justice is important but difficult to define, and that procedural fairness is key to empowering parties and working towards just outcomes.
Mercer Capital's Value Matters™ | Issue 1 2017 | Differing Expert Witness Val...Mercer Capital
Mercer Capital's Value Matters™, published 6 times per year, addresses gift & estate tax, ESOP, buy-sell agreement, and transaction advisory topics of interest to estate planners and other professional advisors to business.
This document discusses strategies for successful mediation of insured claims. It notes that mediating insured claims requires a different approach than other types of disputes due to different participant dynamics. Key strategies discussed include:
1) Ensuring adequate information exchange between parties so that valuations are justified and informed. Withholding information risks evidentiary issues and bad faith claims.
2) Conducting objective case valuation and risk analysis using techniques like decision trees to assess likelihood of various outcomes and compare to similar past cases. Misvaluation of claims often leads to rejected settlement offers parties later regret.
3) Encouraging frank discussion of case strengths and weaknesses rather than relying solely on positional bargaining, as insured claims mediation often devolves
The document provides guidance on preparing clients for mediation. It emphasizes that clients must understand the purpose and process of mediation, as well as the mediator's role. Specifically, clients should know that mediation aims to facilitate voluntary agreements through open communication and problem-solving. The mediator manages the process but does not impose solutions. Effective preparation of clients helps ensure they are informed and able to meaningfully participate in mediation.
The document discusses considerations for companies when mediating employment law disputes. It notes that mediation provides an opportunity to objectively assess case strengths, weaknesses, risks, and costs of continuing litigation, which can lead to settlement. However, mediation does not require settlement. The document outlines factors that can increase the likelihood of settlement through mediation, including selecting an experienced mediator, having appropriate representatives present, and mediating at different stages of litigation, each with their own dynamics. Early mediation before positions harden is discussed as one option that can motivate companies seeking a quick resolution.
Part I What Every Executive Should Know About Dispute ResolutionRBCG1
This document discusses alternative dispute resolution options for resolving business disputes, focusing on mediation and arbitration. It provides information on four dispute resolution processes - mediation, arbitration, negotiation, and litigation. Mediation involves a neutral third party helping parties reach a mutually agreeable settlement. Arbitration involves a binding decision by an arbitrator. Negotiation involves direct discussions between parties. Litigation involves a public, adversarial process where a judge decides a winner. The document emphasizes that mediation and arbitration are better than litigation when future relationships are important.
Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
This document provides an overview of alternative dispute resolution and litigation for business executives. It discusses three key points:
1. Uncertainty from disputes can damage a company in many ways such as making lenders less likely to lend. It is difficult for executives to separate disputes from their personal and professional roles.
2. Most civil lawsuits settle before or during trial to avoid high costs and uncertainty. Effective pre-trial discovery is important for determining settlement parameters.
3. Studies show that plaintiffs who reject settlement offers usually fare worse financially at trial, while defendants who reject offers risk much larger losses if they receive an unfavorable verdict. Trials are high-risk gambles for both sides.
The document discusses mediators' perspectives on legal representation and achieving substantive justice in mediation. It outlines debates around whether mediation can deliver substantive justice or just procedural justice. The document also summarizes researchers' interviews with mediators, who expressed that achieving substantive justice is important but difficult to define, and that procedural fairness is key to empowering parties and working towards just outcomes.
Mercer Capital's Value Matters™ | Issue 1 2017 | Differing Expert Witness Val...Mercer Capital
Mercer Capital's Value Matters™, published 6 times per year, addresses gift & estate tax, ESOP, buy-sell agreement, and transaction advisory topics of interest to estate planners and other professional advisors to business.
Litigating Products Liability Class ActionsRonaldJLevine
This document discusses the importance of early case assessment in products liability class action lawsuits. It outlines a strategy for conducting an early evaluation of the case's merits and potential risks in order to determine if an early settlement is feasible. The key elements of the early case assessment process include collecting relevant information, evaluating the plaintiffs and legal issues, and assessing litigation costs versus settlement costs to estimate the potential value and risk of the case. The goal is to have discussions with the plaintiff's counsel early on to explore settlement opportunities and avoid lengthy and expensive litigation if a mutually agreeable resolution can be reached.
April 2011 Part I What Every Executive Should Know About Dispute ResolutionRBCG1
The document discusses various dispute resolution options for business executives including mediation, arbitration, negotiation and litigation. It provides details on each process and notes that mediation and arbitration are generally better than litigation when future relationships are important. The document also summarizes the key steps and considerations for mediation and arbitration as the main alternative dispute resolution approaches.
Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Rejecting a settlement offer carries risks, as plaintiffs who turn down offers often receive less at trial. Plaintiffs were more likely to make poor choices about rejecting offers in contingency fee cases.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions. Developing rapport and trust between parties can help reach a mutually agreeable solution.
April 2011 Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Plaintiffs who reject settlement offers often fare worse at trial, receiving smaller awards than the rejected offers. Defendants who reject settlement offers also often lose more by going to trial when they could have settled for less.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions to find mutually agreeable solutions. Building rapport and trust between parties can help resolve current and future conflicts.
Mercer Capital's Tennessee Family Law | Volume 3, No. 1, 2020 | Valuation & ...Mercer Capital
This Tennessee case involves issues around the division of marital property and alimony in a divorce case. Specifically, there was disagreement over the husband's income from his role as Vice President of the family-owned railroad construction business, and payments he received from rent on land jointly owned with his grandfather that the business operated from. The appellate court reviewed the trial court's classification of some of the husband's business-related payments as income for the purpose of determining alimony and the marital estate.
Part I What Every Executive Should Know About Dispute ResolutionRBCG1
This document provides an overview of alternative dispute resolution (ADR) options for resolving business disputes, focusing on mediation and arbitration. It discusses the four main ADR processes - mediation, arbitration, negotiation, and litigation - and explains that mediation and arbitration are private processes where the parties craft their own solution or an arbitrator makes a binding decision, respectively. The document also outlines the typical steps involved in mediation and arbitration and highlights advantages like cost and time savings compared to litigation.
This document provides information about mediation as an alternative to resolving legal disputes through litigation. It summarizes that mediation involves a neutral third party helping conflicting parties develop a mutually agreeable solution. Most legal cases are settled through mediation or other means rather than going to trial. Mediation allows parties to have more control over the outcome and potentially restore relationships, while keeping the process more private than public court proceedings.
Preparing for Mediation: From Selection to Presentation of ClaimsFinancial Poise
This episode will cover how to begin the mediation process. We will review mediator selection, including interviewing, references and who may be the right fit for your specific dispute. From there we will discuss how to best prepare for the mediation. How should a risk analysis be performed? What or who should you consider having at the mediation and how to make those decisions. What is a risk analysis and when should you perform the same? How do you prepare your client for the mediation process? What about preparing or communicating with the mediator? Understanding key components of the mediation process to ensure you have done everything possible in order to achieve a negotiated resolution. How to prepare a pre-mediation statement - should it be joint, mediator’s eyes only or a combination. Evaluating whether a joint session will be productive versus starting and staying in caucus.
Part of the webinar series: Alternative Dispute Resolution (ADR) 2022
See more at https://www.financialpoise.com/webinars/
Polsinelli's Gene Commander and Ryan E. Warren presented at the AGC Colorado Association Executive Leadership Academy. The Academy prepares next new leaders for the C-Suite. Polsinelli co-hosted the event with AGC and FMI.
How Food Companies Can Reduce Legal CostsRonaldJLevine
The document discusses ways that food companies can work with outside counsel to reduce costs associated with product liability lawsuits and recalls. It recommends designating an "quarterback" attorney from the outside firm to coordinate crisis response and litigation efforts. Additional recommendations include developing a crisis management plan, estimating settlement and litigation costs upfront, creating detailed discovery and motion plans, considering alternative dispute resolutions, efficiently staffing matters, coordinating multi-state efforts, negotiating discounts with vendors, closely reviewing bills, and conducting reviews to improve future responses. The goal is to leverage outside counsel as a resource to help control costs rather than just viewing them as an emergency expense.
How can knowledge of types of ‘legal funding’ available for dispute resolutio...Priya Saggar
How can knowledge of types of ‘legal funding’ available for dispute resolution be improved? - Jacqueline Harvey, Underwriter at AmTrust Law discusses with Modern Law Magazine
The three-steps guide for successful litigation procedures. Information about third-party litigation funding included. Worthwhile literature provided by Redress Solutions, London, UK.
The Case for Brief Confidential Evaluations In Child Custody Disputespeace talks
The court’s version is the Fast-Track Evaluation which routinely includes oral testimony, but not a written report, by the evaluator. They are well-intended investigative instruments designed to aid bench officers in resolving custody issues.
How to Avoid Making Your Next Mediation a Waste of TimeGiulio Zanolla
1) Proper preparation before a mediation session, including exchanging information, identifying obstacles, selecting the right mediator, and formulating a mediation plan, is essential to avoid a mediation being a waste of time.
2) Due diligence requires analyzing when mediation is appropriate, what information needs to be exchanged, any obstacles to settlement, and selecting a mediator with the right experience and skills.
3) Case preparation involves engaging stakeholders, providing relevant information to all parties, analyzing information through preliminary discussions, and developing a realistic mediation plan tailored to the specific case.
The document discusses the essentials of arbitration agreements. It states that arbitration agreements require parties to resolve disputes through a neutral third-party arbitrator instead of going to court. Contracts often include arbitration clauses that make this dispute resolution process mandatory if disagreements arise. While courts generally support arbitration, they may not enforce clauses if a party was not informed they were forfeiting their right to litigation or if the clause is presented unfairly. The document outlines some concerns about mandatory arbitration clauses preventing whistleblowing, limiting class action lawsuits, and relying on a single arbitrator's decision. It also discusses alternative dispute resolution options like mediation and escalating issues to senior management.
Communicating With Jurors About Money Seminar Power Pointmccormick
A PowerPoint providing defense counsel with practical advice on how to counter plaintiff’s counsel’s attempts to maximize damage awards by developing the defendant’s own theme, choosing “low” damage jurors and persuasively attacking damages during closing argument.
The article discusses 10 things not to do in mediation in order to maximize the chances of reaching a resolution. These include insulting the other party, giving up too soon on the mediation process, focusing only on monetary terms without considering other interests or possibilities, and prohibiting the client from speaking during mediation sessions. The article argues that keeping communication open, giving the mediator time to work with both sides, exploring integrative options beyond just dollars, and allowing client participation can help uncover resolutions and avoid prematurely ending mediation.
1. The document discusses how rebuttal reports can help resolve valuation disputes in litigation. It provides examples of how a rebuttal report, by an independent third party valuator, can identify specific differences between opposing valuations and refocus disputes on more targeted questions.
2. Rebuttal reports come in various formats, including written reports of varying lengths or oral discussions. Written reports allow detailed analysis but oral discussions preserve some element of surprise.
3. Rebuttal reports typically describe the appraiser's review process, identify errors and omissions in the opposing reports, quantify the impacts of any errors found, and provide authoritative references to support the analysis. They aim to objectively evaluate the opposing reports and help the parties
Litigating Products Liability Class ActionsRonaldJLevine
This document discusses the importance of early case assessment in products liability class action lawsuits. It outlines a strategy for conducting an early evaluation of the case's merits and potential risks in order to determine if an early settlement is feasible. The key elements of the early case assessment process include collecting relevant information, evaluating the plaintiffs and legal issues, and assessing litigation costs versus settlement costs to estimate the potential value and risk of the case. The goal is to have discussions with the plaintiff's counsel early on to explore settlement opportunities and avoid lengthy and expensive litigation if a mutually agreeable resolution can be reached.
April 2011 Part I What Every Executive Should Know About Dispute ResolutionRBCG1
The document discusses various dispute resolution options for business executives including mediation, arbitration, negotiation and litigation. It provides details on each process and notes that mediation and arbitration are generally better than litigation when future relationships are important. The document also summarizes the key steps and considerations for mediation and arbitration as the main alternative dispute resolution approaches.
Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Rejecting a settlement offer carries risks, as plaintiffs who turn down offers often receive less at trial. Plaintiffs were more likely to make poor choices about rejecting offers in contingency fee cases.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions. Developing rapport and trust between parties can help reach a mutually agreeable solution.
April 2011 Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Plaintiffs who reject settlement offers often fare worse at trial, receiving smaller awards than the rejected offers. Defendants who reject settlement offers also often lose more by going to trial when they could have settled for less.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions to find mutually agreeable solutions. Building rapport and trust between parties can help resolve current and future conflicts.
Mercer Capital's Tennessee Family Law | Volume 3, No. 1, 2020 | Valuation & ...Mercer Capital
This Tennessee case involves issues around the division of marital property and alimony in a divorce case. Specifically, there was disagreement over the husband's income from his role as Vice President of the family-owned railroad construction business, and payments he received from rent on land jointly owned with his grandfather that the business operated from. The appellate court reviewed the trial court's classification of some of the husband's business-related payments as income for the purpose of determining alimony and the marital estate.
Part I What Every Executive Should Know About Dispute ResolutionRBCG1
This document provides an overview of alternative dispute resolution (ADR) options for resolving business disputes, focusing on mediation and arbitration. It discusses the four main ADR processes - mediation, arbitration, negotiation, and litigation - and explains that mediation and arbitration are private processes where the parties craft their own solution or an arbitrator makes a binding decision, respectively. The document also outlines the typical steps involved in mediation and arbitration and highlights advantages like cost and time savings compared to litigation.
This document provides information about mediation as an alternative to resolving legal disputes through litigation. It summarizes that mediation involves a neutral third party helping conflicting parties develop a mutually agreeable solution. Most legal cases are settled through mediation or other means rather than going to trial. Mediation allows parties to have more control over the outcome and potentially restore relationships, while keeping the process more private than public court proceedings.
Preparing for Mediation: From Selection to Presentation of ClaimsFinancial Poise
This episode will cover how to begin the mediation process. We will review mediator selection, including interviewing, references and who may be the right fit for your specific dispute. From there we will discuss how to best prepare for the mediation. How should a risk analysis be performed? What or who should you consider having at the mediation and how to make those decisions. What is a risk analysis and when should you perform the same? How do you prepare your client for the mediation process? What about preparing or communicating with the mediator? Understanding key components of the mediation process to ensure you have done everything possible in order to achieve a negotiated resolution. How to prepare a pre-mediation statement - should it be joint, mediator’s eyes only or a combination. Evaluating whether a joint session will be productive versus starting and staying in caucus.
Part of the webinar series: Alternative Dispute Resolution (ADR) 2022
See more at https://www.financialpoise.com/webinars/
Polsinelli's Gene Commander and Ryan E. Warren presented at the AGC Colorado Association Executive Leadership Academy. The Academy prepares next new leaders for the C-Suite. Polsinelli co-hosted the event with AGC and FMI.
How Food Companies Can Reduce Legal CostsRonaldJLevine
The document discusses ways that food companies can work with outside counsel to reduce costs associated with product liability lawsuits and recalls. It recommends designating an "quarterback" attorney from the outside firm to coordinate crisis response and litigation efforts. Additional recommendations include developing a crisis management plan, estimating settlement and litigation costs upfront, creating detailed discovery and motion plans, considering alternative dispute resolutions, efficiently staffing matters, coordinating multi-state efforts, negotiating discounts with vendors, closely reviewing bills, and conducting reviews to improve future responses. The goal is to leverage outside counsel as a resource to help control costs rather than just viewing them as an emergency expense.
How can knowledge of types of ‘legal funding’ available for dispute resolutio...Priya Saggar
How can knowledge of types of ‘legal funding’ available for dispute resolution be improved? - Jacqueline Harvey, Underwriter at AmTrust Law discusses with Modern Law Magazine
The three-steps guide for successful litigation procedures. Information about third-party litigation funding included. Worthwhile literature provided by Redress Solutions, London, UK.
The Case for Brief Confidential Evaluations In Child Custody Disputespeace talks
The court’s version is the Fast-Track Evaluation which routinely includes oral testimony, but not a written report, by the evaluator. They are well-intended investigative instruments designed to aid bench officers in resolving custody issues.
How to Avoid Making Your Next Mediation a Waste of TimeGiulio Zanolla
1) Proper preparation before a mediation session, including exchanging information, identifying obstacles, selecting the right mediator, and formulating a mediation plan, is essential to avoid a mediation being a waste of time.
2) Due diligence requires analyzing when mediation is appropriate, what information needs to be exchanged, any obstacles to settlement, and selecting a mediator with the right experience and skills.
3) Case preparation involves engaging stakeholders, providing relevant information to all parties, analyzing information through preliminary discussions, and developing a realistic mediation plan tailored to the specific case.
The document discusses the essentials of arbitration agreements. It states that arbitration agreements require parties to resolve disputes through a neutral third-party arbitrator instead of going to court. Contracts often include arbitration clauses that make this dispute resolution process mandatory if disagreements arise. While courts generally support arbitration, they may not enforce clauses if a party was not informed they were forfeiting their right to litigation or if the clause is presented unfairly. The document outlines some concerns about mandatory arbitration clauses preventing whistleblowing, limiting class action lawsuits, and relying on a single arbitrator's decision. It also discusses alternative dispute resolution options like mediation and escalating issues to senior management.
Communicating With Jurors About Money Seminar Power Pointmccormick
A PowerPoint providing defense counsel with practical advice on how to counter plaintiff’s counsel’s attempts to maximize damage awards by developing the defendant’s own theme, choosing “low” damage jurors and persuasively attacking damages during closing argument.
The article discusses 10 things not to do in mediation in order to maximize the chances of reaching a resolution. These include insulting the other party, giving up too soon on the mediation process, focusing only on monetary terms without considering other interests or possibilities, and prohibiting the client from speaking during mediation sessions. The article argues that keeping communication open, giving the mediator time to work with both sides, exploring integrative options beyond just dollars, and allowing client participation can help uncover resolutions and avoid prematurely ending mediation.
1. The document discusses how rebuttal reports can help resolve valuation disputes in litigation. It provides examples of how a rebuttal report, by an independent third party valuator, can identify specific differences between opposing valuations and refocus disputes on more targeted questions.
2. Rebuttal reports come in various formats, including written reports of varying lengths or oral discussions. Written reports allow detailed analysis but oral discussions preserve some element of surprise.
3. Rebuttal reports typically describe the appraiser's review process, identify errors and omissions in the opposing reports, quantify the impacts of any errors found, and provide authoritative references to support the analysis. They aim to objectively evaluate the opposing reports and help the parties
Similar to The Psychology of a Successful Mediation (20)
Guide on the use of Artificial Intelligence-based tools by lawyers and law fi...Massimo Talia
This guide aims to provide information on how lawyers will be able to use the opportunities provided by AI tools and how such tools could help the business processes of small firms. Its objective is to provide lawyers with some background to understand what they can and cannot realistically expect from these products. This guide aims to give a reference point for small law practices in the EU
against which they can evaluate those classes of AI applications that are probably the most relevant for them.
सुप्रीम कोर्ट ने यह भी माना था कि मजिस्ट्रेट का यह कर्तव्य है कि वह सुनिश्चित करे कि अधिकारी पीएमएलए के तहत निर्धारित प्रक्रिया के साथ-साथ संवैधानिक सुरक्षा उपायों का भी उचित रूप से पालन करें।
Sangyun Lee, 'Why Korea's Merger Control Occasionally Fails: A Public Choice ...Sangyun Lee
Presentation slides for a session held on June 4, 2024, at Kyoto University. This presentation is based on the presenter’s recent paper, coauthored with Hwang Lee, Professor, Korea University, with the same title, published in the Journal of Business Administration & Law, Volume 34, No. 2 (April 2024). The paper, written in Korean, is available at <https://shorturl.at/GCWcI>.
Genocide in International Criminal Law.pptxMasoudZamani13
Excited to share insights from my recent presentation on genocide! 💡 In light of ongoing debates, it's crucial to delve into the nuances of this grave crime.
Lifting the Corporate Veil. Power Point Presentationseri bangash
"Lifting the Corporate Veil" is a legal concept that refers to the judicial act of disregarding the separate legal personality of a corporation or limited liability company (LLC). Normally, a corporation is considered a legal entity separate from its shareholders or members, meaning that the personal assets of shareholders or members are protected from the liabilities of the corporation. However, there are certain situations where courts may decide to "pierce" or "lift" the corporate veil, holding shareholders or members personally liable for the debts or actions of the corporation.
Here are some common scenarios in which courts might lift the corporate veil:
Fraud or Illegality: If shareholders or members use the corporate structure to perpetrate fraud, evade legal obligations, or engage in illegal activities, courts may disregard the corporate entity and hold those individuals personally liable.
Undercapitalization: If a corporation is formed with insufficient capital to conduct its intended business and meet its foreseeable liabilities, and this lack of capitalization results in harm to creditors or other parties, courts may lift the corporate veil to hold shareholders or members liable.
Failure to Observe Corporate Formalities: Corporations and LLCs are required to observe certain formalities, such as holding regular meetings, maintaining separate financial records, and avoiding commingling of personal and corporate assets. If these formalities are not observed and the corporate structure is used as a mere façade, courts may disregard the corporate entity.
Alter Ego: If there is such a unity of interest and ownership between the corporation and its shareholders or members that the separate personalities of the corporation and the individuals no longer exist, courts may treat the corporation as the alter ego of its owners and hold them personally liable.
Group Enterprises: In some cases, where multiple corporations are closely related or form part of a single economic unit, courts may pierce the corporate veil to achieve equity, particularly if one corporation's actions harm creditors or other stakeholders and the corporate structure is being used to shield culpable parties from liability.
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2. CORPORATE DISPUTES Jan-Mar 20182 www.corporatedisputesmagazine.com
PERSPECTIVES
PERSPECTIVES
THE PSYCHOLOGY
OF A SUCCESSFUL
MEDIATION
BY DAVID T. SHOULTS / ERIC RUDICH
> GALLAGHER BASSETT / BLUEPRINT TRIAL CONSULTING
I
n-house counsel and claims professionals
evaluate thousands of cases each year and make
decisions concerning which cases to potentially
take to trial, which to settle soon after a lawsuit is
filed and which to settle before a lawsuit is even
filed. In most instances, in-house counsel and
claims professionals prefer to mediate in order to
avoid the expensive costs of litigation. However,
mediations are often unsuccessful due to the lack
of groundwork and background research carried out
beforehand.
The key to a successful mediation is to build
rapport with your adversary well before the
mediation and in some instances, prior to the
lawsuit ever being filed. In personal injury cases,
rapport can be easily established by making a
prompt call to the party that was harmed and
expressing empathy toward the accident victim.
Plaintiffs frequently mention their dissatisfaction
with how their claim was handled initially and often
this leads them to pursue extensive and costly
litigation. This experience is consistent with research
3. www.corporatedisputesmagazine.com CORPORATE DISPUTES Jan-Mar 2018 3
PERSPECTIVES
which has shown that physicians who had positive
communication behaviours with patients had
significantly fewer medical malpractice lawsuits filed
against them. Similarly, though this can sometimes
be difficult, good communication with and empathy
toward the party filing the lawsuit will likely lead to a
quicker resolution and at a lower amount.
Initial stages of litigation
After a lawsuit is filed, large corporations and
insurance companies will typically forward the
petition to defence counsel with little thought about
resolving the dispute. Once a petition is received,
there should be high-level discussions about the
steps needed to resolve the lawsuit to avoid costly
litigation which may include taking depositions or
retaining experts. Even if the goal is to litigate the
matter, the specifics on how this should be done
are crucial. To paraphrase Victor Davis Hansen, war
– and, similarly, litigation – is a measuring tool or
device designed to show which side was stronger.
However, if rapport is built with your adversary and
THE PSYCHOLOGY OF A SUCCESSFUL MEDIATION
4. CORPORATE DISPUTES Jan-Mar 20184 www.corporatedisputesmagazine.com
PERSPECTIVES
one effectively communicates their position on the
front end, then the battle may be avoided altogether.
If too much time is spent on the litigation, both sides
may then become entrenched in their respective
positions and no argument will move the other side
toward resolution.
Whether court ordered or of their
own accord, parties will frequently use
mediation as a tool to resolve disputes
earlier on in the litigation process.
Often, there is little thought given to
the reasons for the mediation, at which
point in the litigation the mediation
should occur and who the final decision
maker will be.
Mediators used to be engaged as
a last resort before trial when neither
side could reach an agreement.
Today, mediators are often used as an initial step
for resolving litigation. This has led to the parties in
dispute being less skilled at learning the concerns
of the adversary and effectively communicating
their position. Moreover, the parties often avoid
having the difficult conversations often needed
to resolve the dispute. Technology has also led to
fewer discussions being held face to face, which
are ideal for engaging in honest discussions and
more diplomacy while reducing the likelihood of
individuals engaging in offensive behaviour. However,
parties involved in the litigation have outsourced
the finesse needed to move the parties toward a
resolution without regard to how they can play an
active role in resolving the conflict themselves.
The timing of a mediation will depend on whether
each side has developed its litigation story and the
degree of the disconnect between the parties. In
civil litigation, the parties must have positions on
whether there was a duty breached and the amount
of damages and determine the discovery needed to
obtain this information. For example, if one simply
wants to argue the negligence aspect of the lawsuit,
then one or two key depositions may be all that is
needed before both sides come together. However,
if the nature of the dispute focuses on the injury, it
may take longer to get to the point where settlement
talks are productive.
Identifying the final decision maker for resolving
the dispute is an often overlooked yet essential
element of the mediation. It is critical to know
THE PSYCHOLOGY OF A SUCCESSFUL MEDIATION
“Matching the mediator’s communication
style to the decision maker is more likely
to lead to a successful resolution.”
5. www.corporatedisputesmagazine.com CORPORATE DISPUTES Jan-Mar 2018 5
PERSPECTIVES
who the decision maker is in order to focus your
arguments on him or her. Often, several hours pass
during a mediation before parties learn who will
make the ultimate determination for resolving the
dispute. In our experience, it may be the litigants, his
or her spouse, or even an attorney from whom final
approval is needed. Also, having some information
on the psychological make-up and background of
the decision maker can help you better craft your
arguments. Similarly, by knowing the nature of the
dispute and the nature of the decision maker, a
more effective choice of mediator can be made.
For example, if the dispute involves a blue-collar
worker from Philadelphia, one type of mediator
may be used who better resonates with this
demographic. However, they may not be the best
choice for a more educated or sophisticated plaintiff.
Matching the mediator’s communication style to the
decision maker is more likely to lead to a successful
resolution. Having an aggressive ‘Type A’ mediator
will be more effective with an aggressive plaintiff
versus a timid decision maker who will likely be put
off by the mediator’s aggressive tactics.
Developing and testing litigation story
Inevitably, each side will have different views
on liability and damages and, therefore, will value
the case very differently. Each side’s experts will
have different views on the responsibility of the
defendant for causing the tort. Moreover, depending
on the assumptions used, damages experts will
arrive at very disparate valuations. At an impasse,
in-house counsel and claims professionals typically
compare historical jury verdicts with the case
facts to determine case value. However, there are
several issues with this approach. First, each case
is inherently different and thus relying on previous
verdicts may not predict the trial outcome of another
matter. Second, factors such as the effectiveness of
witnesses and jury composition are unique to each
case which will also impact jurors’ verdict decisions.
Last, jurors’ attitudes about issues such as corporate
conduct, personal responsibility and damage award
levels are continually changing and thus, how juries
decide cases may differ over time.
To best determine whether the litigation story
resonates with jurors, in-house mock jury research
exercises will inform which side jurors favour and
the amount of damages they believe are warranted.
In the typical in-person jury research exercise, two to
four deliberation groups will observe presentations
on behalf of each party in the dispute, which will
include key evidence and testimony. Following
these presentations, the mock jurors are read the
jury instructions, given a verdict form, and divided
into one of several groups to deliberate. Each mock
jury will then render a verdict which will include any
damage awards. The results of the jury research
provide a few data points for assessing potential
exposure (the damages verdict for each group).
However, to more robustly evaluate litigation risk,
Bayesian statistics may be used to determine the
THE PSYCHOLOGY OF A SUCCESSFUL MEDIATION
6. CORPORATE DISPUTES Jan-Mar 20186 www.corporatedisputesmagazine.com
PERSPECTIVES
probability of obtaining various damage awards.
Rather than considering only a few damage
awards for making litigation decisions, we can use
algorithms to simulate how hundreds of different
jury configurations would have decided this
case. In regard to the litigation story, this analysis
informs the best- and worst-case scenarios and
the probability of obtaining a damage award equal
to or greater than potential settlement offers. With
this information, in-house counsel and claims
professionals have much more information to
determine whether their litigation story will resonate
and, accordingly, whether they should stay firm
with their settlement offer or move toward their
opponent’s settlement demand. If the mediation
is unsuccessful, the jury research has the added
benefit of determining the key issues and storylines
which will impact how jurors ultimately decide a
case and identify the profiles of dangerous jurors for
whom your litigation story will not resonate. At trial,
the litigation story may then be delivered with more
confidence to the jury.
Conclusion
To conclude, cases can be settled favourably and
at a lower cost if one has fostered relationships
with the opposing party, laid the proper foundation
for their argument and prepared for the mediation.
Also critical is knowing the hand you are dealt.
Conducting jury research prior to mediation can
provide critical information about litigation risk and
potential value. Importantly, one can then save on
litigation costs, either by not settling for too much
or by remaining in litigation that should have been
settled sooner. CD
THE PSYCHOLOGY OF A SUCCESSFUL MEDIATION
David T. Shoults
Complex Claims Director
Gallagher Bassett
T: +1 (817) 944 4697
E: david.shoults@firstgroup.com
Eric Rudich
Partner and Senior Litigation Consultant
Blueprint Trial Consulting
T: +1 (646) 729 3277
E: erudich@blueprinttrial.com