Sunday, April 21, 2013

Priming for Likely Range of Outcomes

It's been a tough week, nationwide.  First there was the Boston Marthon Bombing and then the fertilizer plant explosion in West, Texas.  In between, there were shootouts, captures and loads of probing questions.  I found that it put everyone on edge all week as the news streamed throughout our office.  For those reasons, I paid particular attention to attempting to focus the disputants in two of my mediations this week upon the negotiation at hand. 

On Monday, I mediated a challenging race discrimination case.  The challenge, in part, stemmed from the fact that the Plaintiff was still working for the governmental entity, who, he claimed, had discriminated against him, subtly, but hurtfully, for over a decade.   Before commencing that mediation, I had to caution the defense lawyer that he may need to get more monetary authority than he had previously attained if he wanted to get the case settled.  It was simple "priming" so that when the case got settled for something higher than his original authority (but less than the worst case scenario I painted for him), the defense lawyer and his client were well prepared to accept "the deal".  In another case, I had an out-of-state Plaintiff suing her former divorce lawyer and because she was so long embittered and angry, she had communicated to me that she was prepared to go to trial unless she was certain she could get every last cent on the lawyer's malpractice policy.  When she inevitably fell short in the negotiation, I had to prime her for the likelihood that if she chose to reject the offer at hand, she may have been met with an even smaller "pie" after the Defense lawyers spent considerable time and effort preparing for trial while she considered their "almost policy limits" offer. 

Sometimes the only way to strike oil is to prime the pump until it begins to flow.  It takes some effort and foresight, but the result is all the more satisfying.