A Mediator’s Observations On Effective Negotiations Skills and Techniques In A Mediation: Non-monetary value you can obtain at a mediation
At mediations, the number one negotiating point is Money. No doubt about it.
In civil litigation, I would venture 98% of the cases are resolved on a monetary basis, and some combination of money paid, money owed, money returned, money received, or money not paid. A saavy negotiator, however, will recognize that there is something else of value: Non-monetary issues.
Your client wants maximum recovery of value at the mediation, which might not always be 100% money. In fact, there are usually non-monetary issues that are important to your client or to the other side. These non-monetary issues, perks, conditions, contingencies have VALUE. And if something has value, then it is negotiable.
Sometimes, the client does not even know he can obtain anything other than a monetary recovery at mediation, which obviously is not true. In fact, this is a benefit to a negotiated settlement versus a jury verdict. Nearly every jury verdict will be an award to pay an amount or not a requirement to pay, such as a defense verdict.
However, in a settlement at a mediation, a party is not restricted to monetary outcomes. The parties can agree to a multitude of negotiating points that are not available through the court system.
Every case is different, so listing the non-monetary negotiating points every client finds valuable is not feasible. However, before a mediation, sit down with your client and list out non-monetary issues that are valuable to him. Doing so will give more value to your client and allow your client to reach a maximum recovery of monetary and non-monetary benefits.
Steven Schwartz shares several stories where the issue was money and not the money at the same time. The non-monetary issues truly govern the case and can be catalyst of the monetary demands.
Examples of Non Monetary Negotiating Points That Are Valuable To Clients
Generally speaking, non-monetary negotiating points at mediations include:
Repairs to property or items, such as a vehicle
Apologies (do not underestimate this one) can be very valuable in the right case. I have seen the parties wish to speak to the other side in private to a full blown written apology.
Dates of vacating a piece of property
Dates of accessing a piece of property
Confidentiality clauses of all types.
I have seen all kinds from standard non-disclosures to agreed upon scripts parties must say when asked about the lawsuit. This typically happens in employment law cases to prevent either side from disparaging the other.
Deadline to perform certain acts, which can range from deadline to sign the settlement agreement to when a party must harvest a crop.
Deadline to execute documents, loan documents, escrow instructions, escrow releases of funds, etc. This is one of the more common ones as it forces the other side to execute that which likely they have been refusing.
Letters of recommendation (e.g., in employment actions)
Dates of return of personal property, such as a buyback of a vehicle in lemon law cases
etc.
Of course, nearly every case has a financial component. That means there are multiple Financial components that may have value to each side. So, if the parties are close to resolving financially but cannot cover the gap, consider non-monetary aspects, which may be worth accepting less or paying a bit more, such as:
A Payment schedule, such as payments over time rather than lump sum)
When the payments should be paid. Perhaps, a party wants the payments made after a tax event or immediately
Interest on payments made over time
Deadlines to when payments are due
Categorization of the funds. For example, the parties can categorize the funds as past wages (e.g., in an employment action) or structure the payments for better tax relief.
Summary
There are an infinite variations given the multitude of cases. Take time with your client and evaluate the non-monetary issues he may find valuable. Doing so will help your client see all the possibilities and help him reach his maximum recovery, including non-monetary issues.
Have you had experience with other Non-Monetary terms at mediation? Email me at thazelton@pgllp.com and let me know and I will update the post.
WHAT NEXT?
I am a mediator in Fresno, California who mediates throughout California and beyond. I am available for all your mediation needs. You can reach me to schedule a mediation at:
PEEL | GARCIA
3585 W. Beechwood Ave., Suite 101
Fresno, California 93711
559-431-1300
--Troy
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