In addition to her work in Elder Law, Jennifer Johnston Terando is frequently retained for her mediation services and teaches future mediators through Mediation Mastery, a forty-hour mediation training she created. In this article, Jennifer discusses strategies to help parties get unstuck when settlement negotiations stall.
Imagine this: Your mediation of a civil case has been proceeding for six hours. The parties have made a lot of headway, but the movement is slowing and it is starting to feel like the mediation is moving into the dreaded zone of impasse. Reality testing is an excellent strategy to assist parties with getting unstuck by considering the big picture of their case. The standard mediation refrain of reality testing sounds something like this: “If you don’t settle today, you’re rolling the dice with a jury, and nobody knows what a jury will do.”
While true, this is “macro” reality testing. For a seasoned litigator or a sophisticated party who has navigated dozens of lawsuits, this feels like a cliché. These participants aren’t afraid of the courtroom; they’ve lived there. Telling a veteran litigator that a jury is unpredictable is like telling a seasoned traveler there might be a flight delay—they already know.
To break through impasse with lawyers and parties, it is helpful to move past vague fears and perform a granular audit of the path ahead.
Clarity over pressure is a better tool to move parties toward settlement. When parties become entrenched in the mediation process, the mediator’s goal shouldn’t just be to “get a deal.” It should be to help the parties get granular enough to have total clarity about what the case looks like if the mediation ends in an impasse. With high level clarity, parties often view concessions as valuable, or at least worthwhile, to move negotiations out of impasse. If a party chooses to walk away from the negotiations, they should do so with a high-definition map of the financial, logistical, and personal hurdles remaining. While these items are part of what is defined as the BATNA, this article addresses how you as the mediator can fold the individual components into reality testing. (For more on BATNA: https://yourrnattorney.com/the-power-of-your-batna-your-ally-in-mediation/)
1. Financial Hurdles: Doing the Math
For example, if two parties are $75,000 apart in negotiations, it’s time to stop talking about “risk” and start talking about the line-item reality:
The cost of Expert Witnesses: This is one of the largest expenses in taking a case to trial. For this reason, parties often mediate before the big checks are written for experts. To get granular about expert witnesses, start with a broad inquiry. “What type of experts will you need to hire for this case?” Then go through each expert and inquire what they charge for their review of the case and their testimony at trial. If it’s an injury case, ask if the expert will require an examination of the plaintiff and what that will cost. There may be additional experts that the lawyers don’t mention, and you can present that as another possible cost — for example: “What if the other side puts on a pain management doctor? Then you might have to retain another expensive expert.”
For purposes of this example, assume your inquiry revealed that a party will need to spend at least $40,000 on experts, conservatively. Follow-up reality testing might then sound like this:
“You’re $75,000 apart today, but you still need to retain these experts. Instead of spending the $40,000 on experts — not to mention the time and effort in retaining and working with them — you put some of that into a concession and the case is resolved.”
The specific out-of-pocket trial expenses can also be incorporated into the reality testing: “Your out-of-pocket to put on experts at trial is at least $40,000. And as we all know, for a 7-to-10-day jury trial, you can expect to easily spend $20,000–$25,000 between court reporter fees, jury fees, exhibits, and trial tech.” The breakdown of costs makes a larger impression than simply saying “it will cost a fortune to try the case.” You can then follow up with: “While it would be great if you spent this and prevailed, what if you invest all of this and the jury finds for the other side?”
As parties frequently mediate before they have completed all the discovery, reality testing can go beyond expert and trial fees to address additional discovery, particularly depositions, which can cost at least $1,000 per deponent. And in the instance where parties are paying attorneys at an hourly rate, the argument can be subtly presented — often with a dose of humor — that in addition to all these costs, they will also need to cover legal fees. Directed to the lawyer: “Notwithstanding trial costs, between depositions and other work, how much do you have to spend to even get to trial?” Directed to the party: “While you have a great lawyer, worth every penny, it’s another expense you need to factor in.” The subtle reminder is effective; there is no need to ask specifically about fees.
2. Logistical Hurdles.
The logistical toll can be directed to the party: “Trial will about 7 days of 8 hour days. Will you be able to take the time away from work? Where will your kids be during those two weeks? Who is managing your business while you are in the courtroom?” Mediation sessions can be taxing to parties after just a few hours, and the mediator can utilize this for reality testing. “We’re at about hour six of this mediation on zoom. How would you feel about being in a courtroom for eight hours a day, day after day?”
3. Emotional Hurdles: Confronting the Hard Facts.
The “Witness Stand” Visualization: “Trial isn’t a long deposition. You will be on that stand for hours. You will be cross-examined by a professional whose only job is to discredit you in front of twelve strangers. Are you prepared for that emotional tax?”
Additionally, in almost every lawsuit, there are key disputed facts. If there weren’t, the case would have settled months ago. The following reality testing can address this. “Doesn’t the fact that two sides in this case evaluate the same facts differently, show that there is a possibility of jurors drawing different conclusions?
To take it a step further, take a personal injury case where the plaintiff claims a debilitating back injury, but the defense finds a newspaper clip from two weeks prior to the automobile accident showing the plaintiff being carted off a mountain by Ski Patrol in an unrelated ski incident. The plaintiff may have a logical explanation (“I had gotten dizzy from the altitude but was not hurt.”). When discussing with the parties, the mediator’s job is to pivot to granular assessment:
To the plaintiff: “You know your truth. But when the other side blows that photo up to poster-size in front of the jury, what conclusion(s) might those twelve people draw? Can you afford to bet $75,000 that they will accept the ‘dizzy’ explanation?”
To the defense: “The newspaper clipping may influence the jury, but what if the judge excludes it on plaintiff’s motion in limine or the jury accepts the plaintiff’s explanation?”
4. The Deep Dive into the Stress of Conflict
Finally, you may address the human cost. Litigation is a weight that parties carry in their mental background.
The Stress Audit: Ask them directly: “How is this lawsuit impacting your sleep? Your focus at work? Your relationships?”
The Post-Resolution Visualization: Take a moment to explore the “Day After.” “Imagine waking up tomorrow and this case is settled. The depositions are over. No need to spend $60,000-65,000 on experts and trial. The risk is removed. How does that feel?”
Why Granular Reality Testing is Effective:
This approach isn’t combative; it’s diagnostic. When you work collaboratively with a lawyer, insurance adjuster, corporate representative, or party to map out the remainder of the case life in high definition, the reactivity to the numbers tends to soften. A concession today isn’t “giving in”; it’s a strategic move for the best outcome in the case.