In early negotiation an experienced mediator will argue the downside risks for not settling, when the logical arguments are persuasive; and in the later part of the negotiations argue the upside benefits for settling, when the emotional arguments are persuasive.  You should do the same when considering the order of your own arguments.

Consider your arguments wisely.  Now is not the time to argue points that you and plaintiff see as black and white, since you are not likely to change her mind on such an issue at this point (you should have accomplished that at the joint session).  Consider arguments on issues that you and plaintiff see as differing shades of gray, as you are much more likely to influence a shade of gray than you are black and white.

When you first meet the mediator, refrain from telling him every argument you can think of to bolster your case.  Consider saving one or two good arguments for the very end, when you have a gap to close and you need a good strong argument to justify holding your position.

Resist disagreeing with plaintiff’s arguments outright, as it tends to polarize the issue and is unproductive.  Consider a way to reframe the issue in a way that gives the plaintiff her due, while injecting uncertainty where the argument is vulnerable.  This method of disagreeing with plaintiff is subtle and carries more weight if handled effectively. 

Not every offer requires a justification.  When appropriate, just let the numbers do the talking. 

Consider the mediator’s tolerance for conveying arguments by evaluating the terms used and the effectiveness of his conveying the plaintiff’s arguments to you.  If he is using general or simplistic phrases, lacks conviction, or otherwise undermines the argument as he is expressing it, you can assume he is doing the same with your arguments to plaintiff.  If so, keep your arguments simple and succinct.  Boil each argument down to a single, well-packed sentence, and convey them one at a time, if possible.

Don’t look to the mediator to agree with or justify your counter arguments.  Doing so may lead to a disagreement, which may cause him to loose his enthusiasm for making your arguments sound convincing.  It is to your advantage to keep the mediator uncommitted and unbiased.  I see this error made often.  You must make a conscientious effort to refrain from soliciting the mediator’s agreement.

Robert J. Conover

30 Years in Claims and Litigation Management

Independent Mediation Negotiator  &  Claims Representative