Mediation can be a litigator’s most effective tool in bringing about the settlement of an injury or malpractice case. When used improperly, however, mediation can defeat its very purpose and instead drive the parties further apart. Failed mediations come with substantial risk, as they often result in needlessly prolonged litigation and damaged relationships. Moreover, a negotiator can prematurely divulge trial strategy by reaching for a settlement that wasn’t possible from the start.

The “classic” and often failed mediation pattern in New York negligence practice starts with one party requesting to “mediate,” which is code for asking if there is interest in trying to negotiate a settlement. Plaintiff will make a settlement “demand” and the parties will then head into a costly and time consuming mediation prior to the defendant making an offer. At this stage, neither party realistically knows how the other side views the case. Consequently, the parties start settlement negotiations at mediation essentially from scratch. While this process can start with pure intentions on both sides, it must be understood that some cases simply cannot settle and it is best to make that determination before expending time, money and energy pursuing an unreachable goal.

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