How to Maximize Your Chances of a Great Settlement
When mediation is successful, our clients leave with a fully-signed suite of court orders thanks to our proprietary process
Legal disputes resolve in one of only two ways: by settlement or by trial. Statistically, most cases settle. Not all cases settle, so trial courts stay busy. How can you maximize your odds of reaching a favorable agreement?
The answer is to get ready for trial. This may seem counterintuitive. Why talk about trial in an article about reaching a compromise?
Getting ready for trial puts you in the best possible position for an agreed resolution. Not getting ready for trial and hoping for settlement does neither. It ensures that you are not ready for trial and decreases your odds of reaching a satisfactory private agreement.
Here’s why. Getting ready for trial means:
Due diligence. You need to assess the strengths and weaknesses of your case. This means gathering all the legally-admissible evidence you can, organizing it, and reviewing it. It also means identifying witnesses and interviewing them.
Issuing discovery. In many cases, you may have some evidence, but other evidence and information are in the possession or control of the opposing party or third parties. To get trial-ready, you should send subpoenas and other discovery requests to fill in the missing pieces and further strengthen your case.
Preparing final documents. Your trial exhibits can include a proposed decree or order. By writing your proposed order early, you are forcing yourself to assess your case again by thinking about what you may actually obtain from a trial verdict and what you would need to prove to receive your desired judgment.
By doing these three things, you are preparing for trial, and you are preparing for settlement. If you prepare your proposed final order early, you have something that the other side does not: a draft final order. It can be quickly edited into an agreed order format and used as a settlement offer. Most conventional settlement offers are in the form of a letter or email and raise more questions. Your proposed order settlement offer gives the other side a complete look at your proposal and an opportunity: if they agree, they may simply sign the order and the case is over. If they do not sign it, you then have a great start at your mediation statement. You can send that proposed order to the mediator to inform and empower the mediator about your position.
Identifying trial witnesses and evidence early on prepares you for settlement as well, especially the way we do it. When we identify witnesses and evidence, we disclose them to the other side. This sends a clear message that we are thinking about and preparing for trial and that we have evidence to support our case. It allows the other side to consider our settlement offer knowing that we are preparing to go to trial if they do not negotiate in good faith. It is a show of strength and creates buy-in for them to mediate the dispute.
This is part of the Bundy Law proprietary method of handling a case. Our clients leave successful mediations satisfied because they walk out with a complete packet of signed agreed court orders. We leverage our advanced, sophisticated document-generation technology before and during mediation sessions so that both sides can review and sign the agreement in the form of a complete court order. When we deal with the worst in our industry who refuse to review or sign orders, we bring out the portable printer and get it done while the judge is watching.
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We are unique in our approach. Most lawyers do not think about the final outcome until mid-trial or later, meaning that neither side has ever started on a proposed final order draft during the litigation. If they are able to reach a settlement in mediation, they will only leave with a few scrawled notes about the high points of the deal, leaving a lot of room for argument about the important details that will make up a 20 to 30 page order. They do not have the software to write an order quickly, so those notes go to the bottom of a stack on someone’s desk. As time passes, memories fade and arguments are fostered about what the agreement was and when it would begin. Is it effective the day of the mediation or the day that the order gets filed? No one thought of that. The people who matter the most, the clients who thought they had an agreement, are left in the dark with no final decree or order on file. They thought they were saving money with a lawyer who said there’s no need to prepare for trial or prepare a decree “until later,” but they find themselves with no answers and no resolution.
It doesn’t have to be that way.
