During the joint session you want to complete your case evaluation and develop a negotiation strategy by evaluating the plaintiff’s team and what they have to say.  Knowing what they say will give you clues to how they are evaluating the case, what their expectations are, and where they are vulnerable.  Knowing how they say it will give you clues to the their psychology.  Listen closely for the what and how.

Don’t sit near the mediator.  If possible, sit across the table from plaintiff in order to observe her reactions to what is being said.  Since much of the focus is around the mediator, don’t sit close to him, as plaintiff will be looking in that direction often, not allowing you to observe her unnoticed.

You are accustomed to evaluating how plaintiff’s team will project at trial, but now you want to use those same skills to evaluate how they are projecting themselves today.   This involves evaluating, among other things, their emotional states and motivations.  The qualities of the players you are watching and listening for are their SAP - what and how they are Saying, Acting, and Projecting.

Listen to what they are Saying, and evaluate why.  What is their motivation?  Are they driven by money, justice, revenge, being “right”, punishing the insured, etc?  Plaintiffs in wide verdict-range cases often have specific motivations, so watch for them.

Watch for how they are Acting, and evaluate why.  What is their emotional state?  Are they anxious, angry, mistrustful, nervous, etc?  If a player does not appear relaxed, he is probably being affected by an emotion.  Observe him closely and use your experience and instincts to determine what that emotion is. You need to know this in order to deal with it effectively during negotiations.

Listen and watch for how they are Projecting themselves, and evaluate why.  What is their self image?  Are they a “victim”, a “bearer of justice”, a bearer of some other cause, an entitled person who deserves the best, someone smarter than everyone else, etc.?  Who do they think they are?

Answering these questions about the plaintiff’s team will go a long way toward helping you develop leverage, recognize barriers, and create a negotiation strategy. 

Robert J. Conover

30 Years in Claims and Litigation Management

Independent Mediation Negotiator  &  Claims Representative