Written by attorney Gerald Michael Oginski

Bad Negotiating Tactic During Mediation in a Malpractice Case- Why I Will Never Use This Mediator

Jury selection was starting in two weeks. The case was in litigation for over four years. The defense refused to begin any settlement negotiations. They maintained the case was defensible.


I placed a phone call to defense counsel to find out what their position was. Turns out that they had just conferenced the case that week and wanted to begin negotiating. They wanted the case resolved within one day of negotiating, during a mediation. Would I agree? I agreed to mediation.

Once the date of the scheduled mediation, all parties arrived at the mediator's office. The two defense attorneys showed up with their principals and boxes full of documents to support their defenses. One defense lawyer even prepared a detailed and lengthy evaluation and analysis favoring the defense and forwarded it to the mediator prior to our mediation.

I arrived without any documents and without my client. He and I had spoken extensively prior to the mediation and he had given me authority to settle his case.

My presentation, set in a large conference room overlooking the West side of Manhattan, was a sample opening argument and lasted about 20 minutes. The defense lawyers then began picking apart our claim and raised their own defenses. This was to show the mediator and their principals that they were not simply going to take this lying down or sitting quietly.


After the presentations were over, we split up and the mediator started with me.

Before mediation, I made a settlement demand of $3 million. I conveyed that number to the defense lawyers during multiple pretrial conferences in court.

Having never worked with this mediator before, she began to explain to me, privately, what her technique and tactics were. She wanted me to give her a settlement number that she could take back to defense lawyers to tell them what “I really want." When I heard this, I was shocked. I was very surprised. Then I became annoyed and aggravated.

Politely, I told her that the defense knew exactly what "I really wanted" and it was now time for them to make a good faith offer before we begin truly negotiating.

This mediator claimed that this was how she always proceeded during mediation by starting with the attorney representing the injured victim and asking for a revised demand without ever knowing whether the defense had a single dollar to offer.


This was stunning to me. In 24 years of practice, and settling hundreds and hundreds of lawsuits throughout my career, I have never encountered a mediator who took this tactic. She claimed she was successful at doing so. I told her outright that's not how I operate and that's not how I will negotiate. She didn't appreciate that since she claimed to know what she was doing.

I reinforced the fact that the defense lawyers came to this negotiation knowing what “I really wanted," and I would not, under any circumstances begin negotiating against myself.

"Get them to put their cards on the table and tell you how much they're offering as a first offer. Don't come to me and ask me to change my demand from $3 million to something else before I ever hear about any money being offered."


I found it very disturbing that before we had actually started negotiating, I was in a significant argument with the mediator about how to approach this negotiation. This was disturbing and did not bode well for future discussions on this case.

I did not let this mediator's bizarre tactic take control of the negotiation process. I advised her quite simply that I was extremely uncomfortable with this tactic and would not, under any circumstance, reduce my demand without ever learning what the defense has first offered.


I found that really good mediators will often speak with the defense lawyers first to get a sense of where they are and where they would like to go. This does not commit them to any particular offer but allows the mediator to get an overall gestalt about what will likely happen. From there the mediator will then come in and speak to me and give me an idea of where the defense wants to go, and maybe discuss a range of what they are comfortable in arriving at.

Instead, this mediator wanted me to bid against myself and begin negotiating with myself without ever knowing what the defense lawyers intended to do.

After our significant disagreement, which became quite heated, she reluctantly accepted my request to go get a definite offer from the defense so we could start negotiating. As expected, the defense came up with a significant first offer. It was a healthy six-figure number that got us started.


During the three-hour negotiation process, I learned very quickly that this mediator failed to do something critical that most other really good experienced mediators have always done.

What was it?

Remember when I said that good experienced mediators get a gestalt from the defense about where they're going and where they would like to be? Well, that concept was totally missing here. Instead I would get comments from the mediator when she returned from talking to defense lawyers that “I have no idea where they are going or where they want to be."

That revealed a critical flaw in this mediator's tactics and ability to understand how to proceed forward and make recommendations.

Here's the way I looked at it.

If the mediator has absolutely no idea where the defense wants to go or where they expect to be the end of this negotiation, how then can she make recommendations to me about altering my demand and making counteroffers? The answer is that she would be unable to. That puts me at a significant disadvantage. Instead of being a trusted mediator, she is merely acting as a conduit and is not in control of the mediation process.


A mediator is not simply a passageway within which to transmit messages from one side to the other. I don't need a mediator to do that. Instead, I have no problem having face-to-face discussions with defense counsel. In fact, many lawsuits are resolved where the attorneys simply negotiate directly after having obtained settlement authority.

To recap, here was a mediator who started off on the very wrong foot with a very poor negotiation tactic. I refused to proceed forward using this tactic. Then, during the lengthy negotiation process she was unable to obtain useful information that would have assisted her and myself with key information that would have made the negotiation process smoother and much quicker.


Despite these difficulties with this mediator I'm pleased to say that we successfully settled this case after three hard-fought hours.

The benefit of agreeing to mediation was that it would save all sides tremendous amounts of money in trial costs and if we agreed on a certain settlement amount, this would be a guaranteed outcome. When you go to trial, no matter what type of case you believe you have, there is never a guaranteed outcome.

What's the moral of the story here?

  1. Never let a mediator push you around and dictate the terms on which you are about to negotiate.

  2. Use all available information to formulate strategies about where you think the defense is going and where you think they're ultimately going to wind up based upon feedback from the mediator.


I can tell you this. Despite obtaining a favorable result for my client, I will not be using this mediator again.

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