In our first two posts on mediating commercial disputes we addressed the steps that should be taken before and during the mediation process.  In our final post on the topic we address the best approach to presenting offersand negotiating a settlement.

1. Give thought to how you structure your offer to make it more appealing to the other side,   Are there areas of the dispute which are important to the other side where you can agree or concede in order to create momentum and good will?
2. Avoid describing your offer as your last offer or “bottom line”.  This approach can close the door even if the other side counters with something very close to what you’d be willing to accept.  If you are not prepared to eat your words you could miss out on a settlement.  If you do move off your bottom line you could lose credibility in future negotiations. It is far better to keep your bottom line to yourself.  If the counter offer is not sufficient you can simply hold your position.
3. Recognize that it is not all about money, at least not all the time.  Sometimes a simple acknowledgement of what has transpired or an apology can go a long way to meeting an emotional need of the other side.
4. Be persistent in your pursuit of a settlement.  The mediation process can be slow and frustrating, but having reached this point of the process it is important to push through.  If you reach an impasse try changing the approach.  For example, have the lawyers meet on their own to see if they can make some progress or remove some stumbling blocks. Alternatively, the mediator could meet with the parties without counsel.
5. If a settlement is reached make sure you get it in writing with as much detail as possible.
6. If a comprehensive settlement cannot be obtained, look for opportunities to settle an aspect of the dispute, consider alternatives to ongoing litigation as method of resolving the dispute or establish a timetable for the ongoing litigation.  If possible, try to leave the mediation with some aspects of the dispute resolved and some agreement on the route forward.  This will give you some much needed momentum and increase the chances of reaching an agreement down the road and help you avoid the time and expense of trials and appeals.

Following these guidelines will give you a far better chance of reaching an agreement through the mediation process.  But remember, you do not have to settle at mediation. If, having followed these guidelines an appropriate offer does not arise during the mediation, do not feel like you must accept it.  Often a well run mediation with willing participants can produce a settlement in the days following the session once both parties have had an opportunity to reflect on the proceedings and/or speak with colleagues.

Lisa Langevin	Stephen Kelly