The presence of two or more defendants in mediation is common. What is very uncommon is a cooperative negotiating strategy among and between them. The absence of cooperation between defendants at mediation often dooms any realistic chance of a global settlement. How can such dysfunction be avoided or at least minimized?

Pre-mediation the mediator must quickly assert control of the process by communicating with each defendant to determine whether the defendants intend to negotiate cooperatively at mediation and, if not, why not. In advance of the mediation the mediator must work hard to remove all barriers to defense cooperation. These may include insurance coverage issues, insufficient authority or simply historical hostility between claims professionals and their insurers. Often these considerations blind defendants to dangers posed by the plaintiff’s case. If such intramural defense issues are not addressed and resolved prior to mediation, there is often not enough time to deal with them during the mediation itself.

Consequences for one or more defendants if they fail to negotiate cooperatively can be severe. Typically, a partial settlement with the plaintiff occurs leaving one or more defendants still in the litigation. The plaintiff then leaves with a war chest to fund the litigation and the remaining defendant(s) generally ending up spending more in defense costs and indemnity. This conclusion is the product of years of mediation experience with multi defense cases of all types.

With multiple defendants the mediator must demonstrate constant leadership and active managerial ability. Essential communications must occur between mediator and defendants prior to mediation. During mediation the mediator must manage the time effectively to address lingering barriers to defense cooperation among other things. Post mediation, the mediator also has a role. Often, remaining defendants expect and appreciate the mediator’s informal efforts and commitment to assist them with settlement, although their negotiating positions may have weakened.

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