I have been involved in a large number of mediations over the last two decades (as a defense attorney), and most of my experiences have been very positive. Of course, mediation is not right for every case. I often see cases in which the best strategy is to try to convince the court to dismiss my client on a motion to dismiss or a motion for summary judgment, plus there are some cases that just need to go to trial. But for cases in which money will likely change hands at some point, mediation can be a great tool to achieve a fair settlement while minimizing defense costs for my client.
To obtain a favorable result in a mediation, you need to be well-prepared before you even begin the mediation. But while the mediation is ongoing, an important part of the strategy is to pick the right numbers to offer the other side. You need to act in a way that will move the mediation towards a fair end result, which means issuing offers most likely to result in good responses from your opponent during each step of the negotiations.
ADR MediationTool is an app that was released this past December which aims to help you make settlement offers as a defense attorney, or settlement demands as a plaintiff attorney, in a mediation or other settlement negotiation. The app costs $9.99, and the developer sent me a free copy so that I could check it out. My last mediation was in October of 2015 so I haven't yet had a chance to test out this app in a real mediation, but I can already see that this app can be a useful tool.
To start using the app, tap the Settings button at the bottom right and add your basic case information such as case name and the names of the parties.
If you are on the plaintiff side, you next tap the Plaintiff button to add your expenses, contingency fee and the dollar figure that you would like to obtain for your client. Then tap Negotiations to start the mediation, and the top of the screen will give you a target that matches those numbers. For example, in these screenshots you can see that I have indicated that expenses are $75,000, my contingency fee is 25%, and I want my client to get at least $250,000. The app tells me that I will need to reach a settlement target of at least $408,333 for those numbers to work.
If you are on the defense side, tap Defendant on the main screen. That will bypass the part of the app with expenses, contingency fees, etc. and bring you right to the negotiation portion of the app.
This is the part of the app where you record the demands and the offers. In my example, the plaintiff has started with a $1 million demand, and I responded with a $50,000 offer. In the next round, the plaintiff demanded $950,000 and I offered $75,000.
Whenever you enter a demand and an offer, the app shows you the midpoint for those numbers. That's math that you can often just do in your head, but it is nice to see the midpoint automatically, and it is useful to see how the midpoint changes throughout the settlement process.
Whenever you are ready to start a new round, you tap the plus sign at the bottom left.
In addition to showing you the midpoint, the app shows you two other numbers that can help you. First, tap the midpoint until it turns red and the app will show you the response ratio — in other words, how much the defendant offered in response to the plaintiff's demand. If the plaintiff goes down by $50,000 and the defendant goes up $25,000 in response, that is a 50% response ratio. By looking at your prior response ratios, one negotiating tactic is to make additional offers that are consistent with that ratio, a way to signal to the other side that for every $100,000 that they come down, you are going up $50,000. Or you can adjust your offers to yield different response ratios to send different signals to your opponent.
Perhaps the most useful tool is the Trends Intersection figure, which you can see by tapping until the middle number is blue. This shows you where your negotiations are headed based upon the last two rounds of demand and offer.
By looking at the prior Trend Intersection numbers and adjusting your next offer accordingly, you can try to push settlement negotiations towards a certain number. So in my example, I am assuming that I am trying to settle my case for $350,000 to $400,000, and thus I am trying to keep the Trends Intersection number within that range.
Another tool that this app gives you is the Graph tool. There are three pages of graphs. First, you see the progression of offers and demands over time, and how the midpoint has changed over time. Second, you see a page that, the developer says, lets you apply finance analytics to litigation — things like Bollinger Bands and Linear Regression. I will admit that it is a little over my head, but if you understand these things, click here for the developer's explanation of what the graph shows.
The final page of graphs shows you the trend intersection for your negotiations.
The app also has a tool for handling brackets. In my hypothetical example, when we got the point where the plaintiff was at $775,000 and the defendant was at $175,000, the plaintiff proposed a settlement bracket of between $500,000 and $300,000, which the defendant accepted. Once a bracket is entered, the app will make future recommendations that are within that bracket, and it accounts for the bracket on graphs by using small white circles.
Speaking of recommendations, the app can help you to come up with your next demand or offer. When you first tap the bubble to enter an amount, the app will suggest an amount that is consistent with the most recent midpoint, response ratio or trends intersection.
You can also enter a possible number and then look at the graphs to see how that number would affect the likely midpoint or trend intersection, and then enter a different number to see how that changes the midpoint or trend intersection.
When you are done with a mediation, the app can create a report in PDF format. Strangely, the app doesn't give you the option to email that report, but you can open it in another app that handles PDFs and then email from that app. The report gives you a handy record of all of the demands and offers.
I've only seen one other app designed for settlement negotiations, an app that I reviewed several years ago called Picture It Settled Lite. That app has some features missing from this one, such as recording the time and date of each offer or demand, and I also prefer the interface for suggesting the next offer/demand by showing multiple numbers on a single page with an explanation of what each number would represent — such as matching the dollar change of the last number, matching the percentage of change of the last number, etc. Picture It Settled Lite also lets you store multiple negotiations in the app, whereas ADR MediationTool only lets you work on a single negotiation at a time. On the other hand, I find it easier to enter numbers in ADR MediationTool, and the graphs are much better (even though I'll admit that I don't understand all of them). And I particularly like the Trends Intersection feature in ADR MediationTool, which doesn't exist in Picture It Settled Lite.
All data is stored in the app itself, so you don't need to worry about confidential settlement numbers being uploaded to the Internet.
Will this app, by itself, make a noticeable difference in your next mediation? Maybe not, but then again, who knows. It is certainly one more tool that you can use to help you with your strategy. And because it requires minimal time to use, you don't have to devote much time to the app to get value out of it. If you are a litigator, I think you'll find it worthwhile to give this iPhone app a try the next time that you are involved in a mediation or settlement negotiation.