Daniel Bakondi Law Firm

Attorney Daniel A. Bakondi, Esq. has represented hundreds of clients in mediations involving business, financial, contract, investment, and civil tort disputes including California state courts mediation, federal court mediation, AAA Arbitration mediation, JAMS Arbitration mediation, and Finra Securities Arbitration mediation. Mediation and negotiation is a science and an art. Each mediation is different, with different parties, goals, interests, and dynamics.  Such mediation lawyer representation can take place in both litigation, arbitration, and non-legal-forum settings, court-ordered and voluntary.  

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What are the best mediation and negotiation strategies?

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Mediation is the process, usually in one day, of parties to a dispute meeting informally and attempting to resolve their dispute through negotiation and compromise with the aid of a third party neutral. In this brief discussion, a few points regarding the best ways to handle mediation and its negotiations are addressed. 

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Why go to mediation and why use a mediator?

 

Mediators generally help each party assess both the strengths and weaknesses, opportunities and threats of their case, often better than the parties can do themselves, even with good counsel. Mediators help provide a neutral perspective, or a number of possible perspectives, of possible outcomes if the matter is not resolved. This way, the parties can know what they are bargaining for, what they are risking, and what they are betting against if they do not resolve. Mediators also look for ideas and opportunities for resolution that may not have been previously considered by the parties.

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How do you assess and deal with neutrality of the mediator? 

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Mediators can be of a variety of backgrounds, and the choice of mediator is often an important initial decision. Parties who are new to a mediation are often obsessed with the mediator's neutrality. Mediators are generally professionally trained to be neutral, and help the parties reach resolution without taking sides. In my experience, mediators will point out weaknesses in each parties case and play devil's advocate. As such, neutrality is not as big a concern as would be for a judge or arbitrator, who makes a final decision. A mediator does not make a final decision, but tris to help the parties make offers and compromises they are willing to make. Mediators' reputations generally depend on their ability to understand the factors in a case, accurately and convincingly predict future outcomes, identify opportunities for compromise and resolution, and then be able to resolve disputes.  

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How do you best know and assess your goals, interests, and possible outcomes?

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Knowing your desired goal is not as simple as it sounds. Here are a few of the basic issues to consider. What do you want as the ideal result? What result are you willing to live with? These things you must think of in terms of the alternatives to each of the matter is not resolved.

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Resolution at mediation provides you with a result you know, as opposed to unknown results if the matter is not agreed to. Nobody knows how a matter will turn out if left to the countless unknown and unexpectable factors that can result from opposing parties continuing contentious efforts. The benefits of a resolution must be weighed against all alternatives, known and unknown.

 

Resolution at mediation saves time and money. Resolving the matter today versus two years from now even at a slightly different result may be more advisable. Additional time, effort, business and life disruption has its costs.  

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How do the parties, goals and interests of each affect mediation and negotiation strategy?  

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Who is the party on your side in the mediation? Are you alone? Do you have a spouse whose interests are affected?

 

Are you a partnership in a mediation against another business? If so, are you and your partner's interests aligned? How might they not be aligned, and have you addressed this? Have you and your partner discussed everything you want and everything you don't want from the mediation and underlying litigation or contentious matter? And what is your respective risk tolerance? Is this your main livelihood but only a pet project or side hustle for your partner? Are they wealthy and are you struggling? Are tax or other financial implications different for you than for them?

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Are you a decision-maker or principal for another person or entity? Is the party at mediation a corporation or LLC with duties and obligations to shareholders, stakeholders, and investors? Who is responsible for the outcome in the event of a win or lose, and what are the risks?

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If the dispute involves a corporation and its CEO or other principal, does the corporation indemnify the principal for the conduct alleged? What about the conduct that could be alleged? Do the parties on the other side want the CEO or other corporate officer to be individually named in the suit, and why? Do they want them to be indemnified, and why? Is there a risk of personal liability to the principal? is there a conflict of interest between the principal and the corporate entity if the entity defaults on its obligations or suffers a court result outside the scope of its finances?  

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How does the presence of an insurance company or other surety affect mediation strategy and negotiations?

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Is there insurance in this matter, and is the insurance company's representative present? If so, what authority does the representative have? What are their interests and instructions? This is often affected by the nature of the case, the pleadings, and the policy of the insured. If policy limits are $1 million dollars, as an example, would an insurance company pay out $900,000 if they think there is a 50% chance of winning at trial? Does this create a conflict of interest between the insured and the insurance company, even if they are on the same "side?" How do you address this in mediation and  

 

How does the underlying dispute, litigation or arbitration matter affect mediation? 

 

In order to properly handle a mediation matter, the underlying litigation, arbitration, or other contentious matter must be well known and well handled. Why hold the mediation now? Has the action been filed? Is trial scheduled? Is trial or a hearing imminent that can affect the parties adversely? What are the pros and cons to waiting until after that issue is resolved? Does it materially affect one side's case? Is there a motion pending? Generally, a lawsuit does not even have to be filed for a mediation to take place. In fact, with smart and savvy business-oriented parties, when a claim has merit, there are many advantages to resolution before a case is filed and the dispute is brought into the public and official record, including shareholder disclosures, insurance company notifications, employee retention of counsel, the arising of potential and actual internal conflicts may be minimized, etc. 

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What are a judge's or arbitrator's expectations from a pending or ordered mediation?

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Sometimes judges and arbitrators expect and hope cases are resolved at mediation for a variety of reasons. Sometimes a case is such that the court would have expected a case be resolved before it is brought before them, and will wonder why it has not been. Wasting the court's time, or arbitration forum's time, when a matter should have been resolved, is not appreciated, and sometimes the process's results will show this. 

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In viewing mediating parties, courts may or may not be aware of factors such as:

Are the parties close?

Is it just a matter of dollars?

Is one party or are both parties being unreasonable?

Is one party or both parties expecting something the other side cannot deliver?

Are the parties negotiating and trying to resolve this in good faith?

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At the same time, it is not wise to assume that a judge or arbitrator does not have their own sense of where the parties are in mediation with regards to such factors.

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If you have mediation or negotiations that require an experienced professional attorney that will maximize results, contact attorney Daniel A. Bakondi, Esq. now.

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danielbakondi@yahoo.com

Phone (415) 450 0424
 

The Law Office of Daniel Bakondi
100 Pine Street, Suite 1250 
San Francisco CA 94111

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No attorney-client nor confidential relationship is created and nothing communicated or provided constitutes legal advice nor legal opinion nor creates obligation unless it so specifies and written agreement for attorney services has been entered into.  Attorney licensed in California.  Your issue may be time sensitive and may result in loss of rights if you do not act in time.  Thank you.  January 17, 2022 (c) Daniel Bakondi 

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