The following are suggestions for mediators, parties and attorneys in addressing common problems that arise in mediation.

• Decision-makers should be present in person.
Too often in a personal-injury case, and on occasion a commercial or other dispute, the person with full authority to settle is not present.

An insurance carrier or self-insured representative sends a local claim agent and stays in her office in some distant city. Although "available by phone," this checkwriter has never met the claimant, thus has not had the opportunity to judge the impression the claimant will make at trial - an important consideration in valuing the case. Nor has the person with authority participated in the dynamics of the mediation.

Try to insist on the checkwriter's presence.

• Schedule a premediation conference.
Shortly after being engaged as the mediator, advise parties that you are scheduling a premediation conference call with the attorneys.

Subjects to address at that time include the date of the mediation, contents of the mediation memorandum (whether it should be exchanged or not, except where a particular program governs exchange or non-exchange) and, most importantly, identifying who will be present with authority to settle. Thus this subject is put on the table early on.

The premediation conference will also present the opportunity to find out whether there are any unusual problems involved in the matter that should be anticipated. For example, there may be so much acrimony between the parties that it would be a mistake to start out with a joint session.

• Address false expectations.
Often, the plaintiff's demand is unrealistic, resulting in a problematic low first offer. This occurs in personal-injury cases involving substantial unliquidated damage claims for pain and suffering, past and future. For example, consider a case with a settlement value of $150,000-$200,000 in which the plaintiff demands $900,000 and the defendant's first offer is $50,000.

Now we are in the mediation. Everyone is conscious of the rule of the middle - many cases settle between the plaintiff's first demand and the defendant's first offer.

The defendant is careful not to send wrong messages. The plaintiff makes the next move and reduces the demand from $900,000 to $800,000. The defendant counters with $25,000. The plaintiff screams, "Lack of good faith, we moved by $100,000."

This presents the mediator with a major problem in managing the negotiations. How can you explain the defendant's offer, especially when the plaintiff's attorney has not educated the client on the nature of the dance?

The lesson here is to avoid unrealistic demands. Yes, there is need to have room to move and to make sure money is not "left on the table." But educate the client so that in making significant movements - perhaps from a $900,000 first demand to a $190,000 settlement - it is done with client understanding that the final settlement is satisfactory, and the rest has been the dance.

• Maintain fairness and impartiality.
At all times it is important that the parties - as well as the lawyers - believe that their mediator is totally neutral and has no bias towards one side or the other.

This is not to suggest that a mediator shouldn't ask probing questions to get everything pertinent on the table. However, make sure that body language, as well as tone, expression and other attitudes, are totally impartial.

Remember, there will come times in most mediations where the mediator will want a lawyer or party to listen to his or her analysis of legal issues or values, and a mediator's ability to influence decisions will be jeopardized if there is any perception of partiality.

• Step out of the caucus - try to report only to lawyers.
The mediator has just reported on the other side's latest offer or demand, and the reasons advanced for the amount. Don't stay while the attorney and client deliberate on their response. Step out while the lawyer and client decide on their next move.

It is generally awkward to be reporting on offers and demands in the presence of a party, particularly plaintiffs in personal injury cases. It is therefore helpful to report only to the lawyers, after getting permission from the client to talk separately with the lawyer.

• Responding to the question, "What do you think the case is worth?"
This is a delicate question, frequently asked by a carrier's representative early in the negotiations.

Be careful how this is handled. If an amount is suggested too early, the mediator may have to live with it, and one side may not agree. It is best to defer an answer until the final strokes.

One technique is to use a range. Another is to respond along these lines: "Well, if the plaintiff could end up netting $300,000, and a sufficient amount to achieve this is on the table, I would think the plaintiff would have to look very carefully at such an offer."

• When to cut in
In the above example where the initial demand was $900,000 for a settlement objective of $190,000, assume that at some point after the dance of demands and offers, the plaintiff is at $210,000 and the defendant's last offer is $150,000. The parties are $60,000 apart; $30,000 splits the difference, but the plaintiff will not take less than $190,000. If the plaintiff moves by $10,000, it may send a message that $175,000 would settle the case.

At this point, the mediator should step in and try to stop the dance. One approach is to advise the defendant that the case can be settled for just under $200,000, for example, but note, "I have to know that you will pay $195,000 or an amount very close."

The objective here is to manage the final figures to forestall an impasse where each side is reluctant to make a move lest the wrong message is sent.

Lawyer and mediator Richard Griffin, counsel to Kavinoky Cook LLP, can be reached at rgriffin@kavinokycook.com.