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What happens When the Mediator does not Know How to Negotiate

Your medical malpractice case is close to trial and both sides have agreed to mediate the case, which means, settle it out of court before it gets to trial. Both sides agreed that it would be better to save time, effort, and money by mediating than actually trying the case. The mediation process is presided over by a mediator who is usually a retired judge or highly experienced attorney.

Problem with the Mediator

When your lawyer speaks to the mediator before the mediation session begins, it is clearly apparent to your lawyer that this person does not know how to negotiate. The first thing the mediator asks your lawyer is what your bottom line number is, and wants to negotiate based on that figure. Your lawyer will obviously not want this to happen, since that is not how negotiations are carried out. The correct way to negotiate would be for the mediator to go to the defense and obtain a good faith offer from them, come back, and tell your lawyer what they have offered.

Mediator cannot Ask for Your Bottom Line Number at the Outset

For almost two years, the defense has offered nothing and now, they are coming forward to make a settlement. How can the mediator ask you to negotiate off your number immediately at the start, before the defense has even made their first offer? The mediator however argues and says he has been doing this for a long time, and that is how negotiations take place. Your lawyer should totally refuse to continue with such negotiations, and should not back down from walking out of the door and taking the case to trial. This mediator had no knowledge of how to negotiate and there is no reason to go along with what he says.

Turning it Around

In spite of this rocky start, your lawyer should manage to turn this mediator around, and refuse to negotiate in such a manner. Your lawyer should ask the mediator to go to the defense and get a number that is a reasonable amount, and then the negotiations can begin. Ultimately, the mediator will have to give in and follow your lawyer's instructions, even though he or she may be upset about it.

However, it does not matter if the mediator is upset, as long as he is following the proper way of negotiating a case. The lawyer should not care about the feelings of the mediator but rather focus on you and your case. Your lawyer has an obligation to you, and must try to get as much compensation for you as he possibly can, and represent your best interests.

It makes no difference of the fact that you are paying this mediator's fee, the defense is also contributing and paying this mediator's fee, and the mediator does not like your lawyer's attitude or his strategy. All this is fine, as long as the mediator does what he is supposed to do and tries to reach a negotiating settlement that is acceptable to all. However, to start by asking the bottom line number from your lawyer, and to work from there is not the correct protocol.

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