There is a Settlement Value of your case that is different from the Trial Value. There are many reasons for this, not the least of which is that the audience is different. In mediation, you are not speaking to a judge or a jury, and your client is not the main audience. As a plaintiff’s lawyer, you are speaking to the management of the company and to opposing counsel. Defense counsel is speaking to the aggrieved employee. Depending on the type of negotiation process that you are using for the particular case, you need to be able to tailor your statements and your tone to your audience. You must find a strategy that causes a shift in your opponent, something to get their attention.
Uncertainty is a major motivator in negotiating a resolution in employment disputes. It drives people to want to find closure. But when an employer makes an offer of very little or nothing, it is easy for the plaintiff to walk away directly to the courthouse. Similarly, when the plaintiff makes an excessive settlement demand, it is easy for the employer to go to trial too. The threat of uncertainty has been removed.
If the parties will continue in an on-going relationship, the monetary losses/damages are often subordinate to the value of working through how the relationship can go forward productively. Creative solutions can be achieved much more readily through mediation than litigation.
