Step Three: The Negotiation Session

With the preparation work completed, the parties are ready to get down to productive negotiation in this session. Normally, I will ask the plaintiff to make a settlement demand before the negotiation session. We start the negotiation session with a brief joint caucus where I summarize the work we have completed with the lawyers to prepare for negotiation.

If the negotiation session results in a settlement, we will normally prepare and execute a settlement agreement before the session concludes. I do not favor allowing the lawyers to depart the mediation and prepare settlement documents in the weeks that follow mediation. Sometimes this delay cannot be avoided, because the settlement document is complicated. In basic settlements, however, the agreement should be prepared and signed at the conclusion of the mediation.

If the case does not settle in the negotiation session, we will not look upon the effort as a failure. Instead, we will discuss whether an additional session, coupled perhaps with some additional work, should be scheduled. Persistence is one trait of every good mediator.