Taking Time Out from the Mediation Hearing

On weekends, you can find me aboard our sailboat, aptly named, "Time Out".  Last week, I had two mediation hearings which could not settle on the day of the hearing.  Rather than declare an impasse, however, I simply called a "Time Out".  In the first case, there was some yet-to-be discovered documentation which Plaintiff's lawyer believed would support his contention that the basis for the termination was pretextual and the true basis was disability discrimination.  In the second, the Defendant Company had been sold and there was limited settlement authority from the old Company, given that they had already sold the case--both costs of defense and damages to a wealthier new Company, who would assume all future risk by mid-summer.
Our boat's name is a metaphor for taking time "out at sea" and the album name for the jazz record by Dave Brubeck, "Take Five" (our previous boat's name).  But in the case of a mediation, there are many compelling reasons to call a "time out" rather than an end to a mediation hearing.  A "time out" assumes it is temporary, as contrasted to a "time in".  Negotiations may be resumed at a time when they are likely to be more fruitful.  Like sailing, it also suggests that at least one, but often both sides need to take a little perspective before proceeding and closing the deal.
The post script is that one of the cases has rescheduled for another full day of hearings after negotiating an acceptable bracket within which to begin and resume negotiations.  The other is parlaying offers and counter-offers by telephone, now fully appreciating that there is limited time to continue negotiations before they will have to start over with new decision-makers in the board room.
In what ways do you communicate a willingness to continue negotiation when you hit what would otherwise appear to be an impasse?

How do you Get an Honest Evaluation of Liability?

One of the most valuable reasons to have private caucuses before bargaining begins in mediation is to ferret out how strongly each lawyer feels about their client's case.  These are discussions that are rarely included in the legal briefs.  A friend and awesome mediator, Gig Kyriacou, says he asks each side to anticipate the other's strongest points.  In doing that, he is able to learn early on what each side perceives their weakest point to be.
I find that most lawyers have carefully and deliberately evaluated their chances of success at trial, but have never communicated their weak points to their clients and certainly never would concede them to the opposing counsel.  Enter the mediator's world!  How do you get an honest evaluation from the lawyers in mediation or settlement discussions?

Is Distributive Bargaining Worthwhile when the Parties to a Negotiation are Hundreds of Thousands of Dollars Apart?

       I find that most of the cases that I mediate need a third party neutral because the two sides are evaluating both liability and damages very differently.  The mediator is the bridge to some better understanding.  But beyond the conceptual, how effective is it to conduct distributive bargaining by way of demand, offer, counter-offer and counter-demand when the parties start out with a demand of something like $1 million and an offer of $5,000.?

     My experience recently tells me that the simple acting of loosening up the parties towards movement, even if it's minimal, is useful to gain some momentum and narrow the chasm between the two sides.  In a hearing this week, the Plaintiff responded to that hypothetical $5000 offer with a drop of $100,000.  The clever defense lawyer moved up another $5000 and was surprised to get another $100,000 drop in exchange.  Though there was an obvious slowing at a certain point, the seemingly futile dance had begun, resulting in a mediator's proposal within a field that had been considerably narrowed against what would otherwise appear to be great odds.

Yes, I'd say showing up to the dance is only the first step.  After that, you actually have to get out onto the dance floor and take those first risky, uncertain steps before the rhythm of the music takes over.

How do you manage emotions and tempers in mediation?

In mediation, there are often moments when we become coaches through difficult, emotional moments.  At those times, I find it is helpful to take a lesson from addiction counselors.  They call it "SOBER" breathing and it works like this:  Stop, Observe, Breathe, Evaluate and then Respond.
What techniques have you used or observed to be effective when emotions erupt and tempers flare?

Is it possible to be Multi-Partial, not Impartial in Mediation?

     Sometimes I feel like I am being torn in two.  My "empathy" quotient goes up so high that I truly feel like I am on each side of the dispute I am mediating for the time I am in each room.  Then when I go into the other room, the other side wins me over completely.  Is this the kind of neutrality that is effective to settle disputes?  How do others keep themselves from being multi-partial, or is it actually a good quality to have when the facts or issues call for it?
     Last week, I mediated a dispute arising out of an allegation of disability discrimination by a long-term employee against a small business.  I empathized with the Plaintiff, because she had loved the job and got no full or legitimate explanation for why she was terminated, leaving her lawyer to conclude the stated reason of insubordination was pretextual and the real reason was her recent diagnosis of an old injury, which now required surgery.  In the other room, I truly empathized with the employer, whose office manager had made a quick decision in reaction to an argument with the employee and who now was looking at paying many multiples of the Plaintiff's salary to avoid a trial on this case.
     I am confident that at the end of the day, both clients and both lawyers saw me as their champion--and the key to a successful negotiation.  I was able to confidently reassure them that the result was fair in the scope of the litigation before them.  But is that what neutrality is supposed to look like? Is a mediator supposed to remain neutral and impartial or is it actually more effective to be "multi-partial"?

How do you Use a Written Evaluation of Likely Damages Effectively in Mediation of Business Disputes? ?

    Numbers have their own mystical language and I find that sometimes writing out the most likely, least likely and somewhere in between outcome in a business case can be a useful vehicle for further discussion. 
     After I elicit the parties best estimates of those figures, I can project a range of most likely outcomes.  For example, in the lawsuit arising out of an allegation of damage to manufacturing equipment due to a leak at a warehouse, I was able to project that if the property proved to be a total loss, after the salvage value of about $50,000,  the owner would be left with a hypothetical loss of $250,000 (since he claimed the depreciated value of the equipment was $300,000.). 
     On the other hand, if the equipment could be restored, at a cost of $25,000 and resold at a discounted price of $200,000., the loss would be only $75,000.  ($300,000 less $225,000 for costs of repair less purchase price).  The third possibility was that he could use the machinery himself once it was restored, making the loss only $25,000.00 (the cost to restore to it's full value of $300,000.).         
     After assessing these values, the analysis goes further to assess the likelihood that each occurs.  In my example, the lawyer and I believed that there was only about a 10% chance the machinery would be a total loss. The settlement value of 10% of $250,000 turned out to be $25,000.  On the other hand, we agreed that there was a 50/50 chance that he could re-sell the property, making the settlement value approximately 50% of $75,000.  The chance that the only loss would be the cost of repair, or $25,000 was again only 10%, making the settlement value $2,500.00.  By assessing these potentials, and writing them out, the numbers demonstrated that if the case could be settled at something between $25,000 and $75,000, the Plaintiff would have achieved his goal of being compensated for the most likely amount of loss occasioned by the leak at the warehouse.   Whereas he arrived at the mediation assuming his case was worth no less than $250,000., he left feeling fine about a settlement of $60,000. based upon this careful analysis.
     This technique is particularly useful where, as here, there is a language barrier and the concepts are translated but the numbers are too quickly glossed over.  Somehow seeing these numbers throughout a long day's mediation can achieve a magical consensus on the value of settlement in a business dispute.
     Do you find a written number analysis useful in your mediation hearings?

Do you ever hold a Late Day Joint Session to Save a Dying Deal from Impasse?

Sometimes after a long day of bonding and commiserating, I get a sense that the lawyers are so busy posturing for their own clients that they get stuck in an argument they no longer believe in against "the enemy" in the other room.  Joint sessions at these junctures are risky business.  Still, I find it is worth taking that risk when real signs of an impending impasse seem to be looming. 

Last week, after 9 hours of negotiation on a case that had an initial demand of $500,000 and an initial offer of $15,000, the Defense offered a "last, best and final" offer that was well below the last mid-point of the proposed bracket that was on the negotiating table.  Hypothetically, Plaintiff was hinting that she'd take $200,000 by offering to bracket the negotiation at $100,000 and $300,000. and Defendant instead offered a randomly chosen $127,500.  At that point the lowest actual demand by Plaintiff had been $350,000, though it was apparent that the mid-point of their range would be $200,000.  Rather than present that offer myself, I invited the two defense lawyers to meet with the two Plaintiff lawyers (without their respective clients) and present the offer themselves.

I was not so very surprised, but pleased when the Plaintiff lawyer kindly stated that his team wanted to settle the case, couldn't accept that offer and was willing to stay to see if there was a number which all could live with that evening, rather than risk losing the deal after so much progress in narrowing the chasm between them had been made.  This was a gentlemanly hint that the gap between $200,000 and $127,500 could be bridged if they worked at it.  The defense counsel, to their traveling client's chagrin, agreed to stay for another hour to continue to negotiate, beginning with the terms of a long-form agreement which had heretofore seemed unattainable.

It only took another hour to move the Defendant up ever so slightly to $135,000. but at that point Plaintiff was satisfied that she had really gotten the best deal possible at the mediation.  And most of the non-monetary terms had already been agreed upon by then, too.

It's risky business, but I find that late day joint session between opposing counsel without clients can be worthwhile where the attorneys are urging settlement to their clients and feeling somewhat discouraged that the parties can reach an agreement based upon the negotiation at hand.

How does a Busy Mediator Stay Fully Engaged in each Case?

One of the struggles I have when I am as busy as January has become is to fully attend to each case and essentially be "an empty vessel" so that I can listen deeply to the parties in conflict, without pre-judgment or bias.  Like a good psychotherapist, a mediator's job is largely to listen, empathize and reframe in such a way that the disputants to any given conflict feel genuinely heard and understood.  It is only after that exercise and effort that the mediator can help each side to see the other's perspective and be truly creative in addressing each side's claims and underlying interests.

Last week, I attended a Networking meeting lead by a colleague and friend, Mark Fingerman, who also teaches Yoga and meditation.  He challenged the lawyers present to give meditation a try.  Together, we sat erect in our conference room chairs, eyes closed, attentive only to our own breathing.  After three minutes, chimes sounded and we opened our eyes.  It sounds too easy to have been true:  but somehow I felt a little more genuine in my listening to the life story of the Plaintiff in a wrongful termination case that came before me that day.  I heard (through a translator) about the plight of a man who had experienced an extraordinarily challenging life.  He came to the U.S. on a boat from Viet Nam during the war in the 1970's.  He suffered horrible losses during that trip:  family members drowned and others were too weak to survive the journey.  He struggled to gain U.S. citizenship and employment here--with no English skills when he arrived here.  He was now the sole care taker for a disabled (adult) child and had been out of work for over a year. 

My morning meditation (only 3 minutes!) gave me the calm and legitimate "presence" to listen deeply to a point of view which I cannot personally know, given my own experience as an American born, college educated, empty nester.  Having calmed myself early in the morning, I found I could attend to the difficult facts and truly empathize and engage with this Plaintiff.

I am certain it is not the only way, but for me, so far, meditation has been a simple, but effective tool to empty my mind of my own personal clutter and fully attend to those in conflict before me.  And today I worked my way up to 4 minutes!

How do You Manage Multiple Defendants?

I was up late last night mediating a challenging case where an employee sued her former company after it had been sold to another Company.  Though the first company had sold all of it's assets, there was a contract that specifically stated that the successor company did not purchase or assume any of it's liabilities.  Luckily, there was some insurance coverage for the old company, since it no longer had any assets and was defunct. 

After a full day of negotiation, the Plaintiff and defendants collectively agreed to my mediators proposal.  Then the real drama began.  Although the defendants had spent a full 8 hours together in a single conference room, the dynamic suddenly shifted when the standard terms appeared on the short-form agreement:  "each party to bear its own costs and fees".  Though all of the defendants were delighted to settle the case against Plaintiff, there was an express indemnity agreement which legally gave rights to the new company to look to the selling company, Plaintiff's former employer, for indemnity.  And their costs were huge!

At 9:30 P.M., after Plaintiff had signed the agreement and left the office, I found myself looking at faces like those above.  While I was circling between rooms and mobile phones, discussing the ramifications of holding up the settlement to pursue recovery of costs with out of state clients and senior partners, the mood was getting darker and the other participants angrier.

After a relatively sleepless night, I did get confirmation that it had worked out and there was a full release made.  Still, I clearly could have and should have raised this dark issue as a potentiality long before the final agreement was being signed.  I guess the lesson is not to make any assumptions that standard terms will be agreeable in any settlement agreement.  Everything is subject to negotiation.  I just wish those negotiations could be conducted before sundown.

Lessons Learned from Negotiating to buy a new car

     This week I negotiated to buy a new car.  After over thirty years of marriage, this was the first time I did all of the negotiation and took title on my own.  I was struck by how many techniques the salesmen used to close which are also employed by the astute mediator.  Here's how it went down. 
     First, the salesman offered to let me take the car out for a drive.  He had some confidence that this car would "sell itself".  This was a little rapport building.  Then, he searched his computer for a car that met our wishes in terms of color and features.  This was the information gathering stage.  While he did that, he offered us expressos, pastries and even sandwiches.  He kept us there and kept us happy. (We were at the dealership for over two hours on Monday and about three hours on Tuesday.)
     Next, he offered to take my old car in trade at a certain (low) rate, even though it was in the shop for repair with an unknown problem.  We developed a mutual, collaborative process at this point to figure out how I could get rid of my old car and swap for a new car effortlessly and at the least expense.  There was a nice rapport going and even a bit of distributive bargaining on the terms of the purchase and sale.  This was about 4:00 PM, and as is typical in the negotiations of lawsuits as well, things got a little challenging and I needed a break to discuss the pros and cons with my husband.  We left and promised to be back in touch later in the day.
   Then we hit a snag.  The next morning, my husband took my car over to CarMax and sold it at a 20% higher rate than the salesman was offering. 
     Sometimes a particular new development arises in a negotiation which changes the terms entirely.  In those instances, though the negotiating parties may want to follow their instincts and forge ahead, it is better in fact to take a step backward and re-assess.  I had superior bargaining power at that point because I wasn't asking the dealer to take my old car (with 71,000 miles and out of warranty) in trade.  I was able to negotiate a better rate and higher mileage on the lease.
     Now it was New Year's eve and insurance offices and finance offices were closing every hour all over the Country.  My car had been sold and I wasn't sure we could get the deal done on the new one before the New Year's holiday.  I knew, however, that the salesmen wanted to make it happen to boost their 2013 sales.  Another advantage! 
     We got several levels of Managers involved in order to close the deal by 4:00 PM on New Year's eve, overriding their initial offer on higher financing costs.  Clearly, the collaborative process and information exchange which began the transaction served us well as the final details were completed.  And my negotiating skills were completely transferable.  Triumph in four wheels!

How Does a Mediator Remain a Beacon of Peace to Conflicting Parties?

      "Tis the season"...to think about peace on earth and good will towards men (and women).  As a professional mediator, I am keenly aware of the conflict that arises between people every day.  I am invited into the lives and struggles of strangers to gently yet effectively intervene with some dosage of humanity, kindness, understanding and empathy.  This I do with equanimity, diplomacy and purpose.  I am asked to draw upon my  20 + years of legal experience and my 10 + years developing skills as a mediator, to assist parties in reaching a satisfactory solution to their suffering in a single day--usually by the transfer of money, and often also based upon an offering of some understanding by a neutral third party as to what lead them into the conflict in the first place.  This is harder than it seems and often results in an exhausted and depleted mediator by day's end.

     What are some strategies that you have developed to keep you from being drawn into the drama that gives rise to the litigation and unfolds throughout a mediation hearing?  How do you balance empathy and understanding with clarity to be a beacon of light forward? Are readers that are lawyers as genuinely passionate about their client's causes as they appear? How do you let it go after the settlement is achieved?

     Next week, I will be taking the week off from blogging and instead spending Christmas aboard our sailboat in the Pacific Ocean (we'll be in the nearby harbors at Long Beach and Newport Beach--enjoying family, lights, and letting go of the stress of the year).  I hope that there I will find some guidance, take a few much-needed days off, and enjoy the peace, light and clarity that I wish for all of you in the coming Year.  Have a wonderful holiday week!

Do Secrets Compromise the Mediator's Neutrality?

   Occasionally, I get stuck in a corner where I know that the Defendant in a dispute would pay more than the Plaintiff's "bottom line".  Of course, this is revealed to me in confidence, and of course, I maintain that confidence all day long--even after the case settles for something less than the Defense was willing to pay.  Still I am a little haunted by the collision between my duty of confidentiality, which in this instance is crystal clear, and my duty of neutrality.  By NOT revealing or even hinting to the Plaintiff and his counsel that the Defense would pay, hypothetically "up to $75,000" at any time before the case settles at $55,000, am I favoring the happy Defense counsel and his client? Am I maintaining my neutrality or do I have a duty to hint at the possibility of a better settlement to the Plaintiff even if he is quick to reduce his demand to $55,000?  My hypothetical assumes that Plaintiff is satisfied with the settlement at $55,000 for a variety of reasons which may include Plaintiff's sordid past history, his lawyer's incompetence or failure to comply with discovery deadlines or his inability to finance future litigation.  As in every settlement, the parties are both satisfied with the outcome of the mediation, but a mediator with a conscience is left wondering:  does my duty of confidentiality compromise my duty of neutrality?  I'd love to have your thoughts, fellow mediators as this one is a big SECRET!

The Private Meeting Between Clients: Mediating Dangerously

      In it's purest sense, a mediation is supposed to be a chance for direct confrontation and communication between the principals engaged in the dispute.  Far too often, in the age of litigated cases and commercial mediation, this step is avoided or eliminated at all costs.  Still, whenever there has been a strong and positive pre-existing relationship, such as employment, family or even marriage, it's great if you can orchestrate a private meeting between the principals early on in the mediation.
     This week, I took that risk and had the Human Resources manager meet privately with the terminated long-term employee to discuss the reasons for her decision, her regrets and her thoughts about future potential alternative employment.  At the same time, the employee had her chance to rage at the H.R. manager, express her sadness for being let go so abruptly, her frustration in finding alternative employment and her profound sense of loss after she was fired.  The meeting ended with tears and a hug.
     The mediation was not over, but it was only after that watershed meeting that the parties could productively and collaboratively work together to find a way out of the lawsuit.  It is mediating dangerously, since neither the mediator nor either sides lawyer was present to orchestrate or script the meeting and each of us took the considerable risk of allowing things to blow up instead of over.  But in the end, when those private meetings result in tears, hugs and ultimately settled cases, it is oh, so rewarding to take such a risk.

Leaning In to Conflict

Sheryl Sandberg has written a great book called "Lean In" about the importance of women assuming a certain posture in business and personal interactions designed to demonstrate that we are truly engaged and committed to serious business as equals at the conference table.

This week, I heard a civil service case in which an employee who was discharged from her employment after an angry outburst directed at her Supervisor lead to her termination.   As a civil servant, she was entitled to have an administrative appeal before the Personnel Commission makes the termination follow or makes the decision to overturn the termination and restore her to work.  The striking part of the case for me was that after she was separated from her work site during the investigation, no one really took the time to listen to her complaints, which were plentiful!  She painted a picture through numerous witnesses of a toxic environment in which screaming and disrespect were commonplace amongst staff members and tears and resentment were a regular occurrence.

It sounds trivial, but often times the way out of conflict is to allow your client to fully vent and explain the circumstances to a non-biased third party.  In the heat of the conflict, nobody within the work place can completely divorce themselves from the environment in order to see the full context of the events precipitating a termination with an un-biased view.

The outcome may be identical, but the output is very different.  Just giving a person a chance to be heard can be a very satisfying and emotional experience which may have a healthy impact on everyone involved. 

It turns out that "leaning in" can be a way to "lead out" the parties who come to a conflict in so much pain and chaos.

As my readers approach Thanksgiving next week, I give you permission to put your elbows on the table and practice "leaning in" to really discover what is affecting at least one person at your holiday table.  You will both be grateful for the opportunity to connect in that way.  And isn't gratitude what this holiday is all about?

Finding the Sweet Spot: The art of the Mediator's Proposal

      Lately I have been finding that very skilled litigators frequently defer to me as mediator to help them settle their cases by making a mediator's proposal, even before they reach an impasse in mediation.  In fact the last 3 of 4 cases I have mediated have been resolved on the basis of a mediator's proposal.  So how do I do it? 
     At a certain point in the negotiation, when it threatens to stall, but before it hits an impasse, I begin negotiating with each side in hypothetical brackets or ranges until I hear or sense there is a potential overlap.  Contrary to the beginning stages of negotiation, this one really becomes a negotiation between mediator and parties, as opposed to party against party. 
     By the way, there is not always an overlap, so sometimes I have to consider both the "bluff factor" and the "stretch factor".  That is, one side may be telling me that the case will never settle below 6 figures ($100,000.00) and I may ultimately discount that by 10-15% and make a mediator's proposal at $85-90,000 on the assumption that the strong assertion of a particular number has some "bluff" to it.  The other side may tell me that they will never go above $75,000, but in a mediator's proposal at $85,000, that side will usually "stretch" to get there.
     I just read and reviewed Dwight Golann's excellent book, "Sharing a Mediator's Power" where he describes the negotiating dynamic in mediation as a triangle with each opposing party at either side and the mediator as the base of the triangle--negotiating with both and still trying to achieve balance and harmony between the two, standing as their foundation and supporting them in an integral function of her own. 
     I prefer to think of it as hitting the "sweet spot" where the proposal just abuts the intersection of good ideas and bad ideas to make a sensible means of settling the case after all other efforts through the course of direct and indirect negotiation have failed.  And boy do I feel triumphant when I hit the sweet spot and both sides say "yes".

Beware the Bully Negotiator

     I have just finished reading Professor Dwight Golann's excellent book, "Sharing a Mediator's Powers".  It was timely in that last week I mediated a contentious wrongful termination case in which one of the advocates was a notorious "bully".  The case ended with a mediator's proposal which was accepted by both sides.  But I have to say that I was very concerned that the bully advocate had hijacked the mediation and would be gaining an unfair advantage as the result.  I was so relieved and gratified when both sides accepted the proposal and the weight of the balance was taken off my shoulders.

     As Professor Golann details, the mediator gains all of her power from controlling the process of the negotiations, but the advocates can in fact achieve a better outcome for their clients if they are successful in getting the mediator to help them, for example, to make sure that all necessary parties are at the negotiating table, that a joint session is either intentionally held or omitted, that the mediator avoid "reactive devaluation" by delivering key messages instead of delivering them yourself directly to your adversary, and so on. 

     The integrity of the process is sacrosanct.  As Golann concludes, "mediation is an active process, capable of almost infinite variation.  Good lawyers know a mediator can help them negotiate effectively, and are not bashful about asking for help."  Just be careful to maintain your balance!

    

Know your BATNA and WATNA

Last week's monthly "Settlement Strategies" newsletter talked about the ZOPA and NOPA (Zone of Possible Agreement and No Possible Agreement), in preparation for "winning" at negotiation.

This week I address another set of acronyms:  the BATNA and WATNA.  This stands for the Best (and Worst) alternative to a negotiated agreement.

Once the parties are engaged in litigation, it is hard to step back and genuinely analyze the best and worst possible outcome.  It may surprise you to know that as a mediator, I do not think it is necessary to carefully look at the BATNA or the WATNA until or unless you are presented with a respectable offer.  Before then, you are only speculating, because you only know your side of the equation, not the "alternatives".  After the negotiation has become and when there is an offer on the negotiating table that has some appeal, the lawyer representative should help their clients to engage in a "what if" questioning mode to determine what the consequence of turning down a respectable offer might be.  Will the rejection signal a breakdown in negotiations altogether? Will the conclusion of negotiation trigger a large expenditure in costs to do better? Will the outcome of a pending motion for summary judgment cause the losing party to double or triple their offer? Is it worth the risk?
    
     Looking at your BATNA and WATNA, a term that most business students learn, but law students seldom know will make you look smart and may improve the outcome for your client, too.

Helping the Lawyers to Gain Client Control

One of the most valuable services a mediator can provide is to conduct the most difficult conversations between a lawyer and his own client about the value or risks and merits or defenses to the case pending.  Let's face it:  when lawyers take on a case, they are as starry-eyed as their clients about the merits of their position.  As trial approaches, discovery is completed, thorough investigation is conducted and realities of costs v risks and benefits has set in, both lawyer and client may change their evaluation. 

Without treading into the dangerous waters of creating or highlighting any conflicts of interests between lawyer and client, a good mediator will ask a lot of rhetorical questions and be a leader in this regard, based upon the claims being made by each side and her independent evaluation of what is truly needed in order to resolve the dispute.  The key is transparency so that neither side feels that you are working on their behalf, while underscoring the most likely outcomes if the matter is not settled, including the risks that one or the other side is correct in their new evaluation!

Last week, I mediated a small case in which not only did the defense lawyer think his clients should pay the Plaintiff's bill, but one of the two partners believed it would be more expedient and less expensive to pay than to continue to fight.   The other, of course, in a dramatic fashion, adamantly maintained that this was extortion and he would rather lose the case in trial than pay for a claim which he did not believe had merit.  There were lots of micro-opportunities to mediate in only the defense room! 

This kind of mediation is a great challenge.  A fearless mediator is one that dives into these micro-conflicts before they break out into nasty accusations that potentially derail the negotiation at hand.

Begin the Mediation Before the Hearing

     Call me old-fashioned, but I think it is critical to have a voice to voice conversation with every lawyer involved in a litigated case before the mediation begins.  This week, I failed to follow my own cardinal rule because after the first conversation with the defense lawyer, I knew that my hardest effort would be to get his clients on board with an earnest interest in settling the dispute. 
     Then when I arrived, the Plaintiff's lawyer informed me that her client was short on time and requested I begin the process with them.  I happily obliged and ultimately got the parties negotiating earlier than usual in the process.  The trouble was that neither had revealed to me beforehand that they had previously discussed settlement and that there had been pre-litigation offers and demands (between the principals before they engaged lawyers) that were identical to those made at the hearing, but now after many months of litigating and incurring costs and fees on both sides. 
     When I returned the "final" demand, the Defendants, understandably, were incensed by the number, since this had been communicated to them many months before.  They lost faith in the process and walked out without a settlement.  The whole debacle could easily have been avoided had either side communicated to the mediator what the history of settlement negotiations had been.
     Next time, I am going to ignore the signs and signals and ask the probing questions of both sides before I sit down with their clients to begin.  Email communication only goes so far.  Go ahead and call me old-fashioned.
     On a personal note, I am thrilled to have been named to the Top 50 Neutrals list by the Daily Journal for the State of California.  Many aspiring mediators have asked for my secret to success.  That is, I confess, old fashioned too:  hard work, many hours of trial and error and perseverance in a profession that can be more rewarding than any I could imagine, but challenging every single day!

Lessons from Improv Actors for Negotiators

     This week, I'm preparing a couple of talks on negotiation skills and conducting some research which has lead me to draw upon improvisational acting class.  One of the cardinal rules of improvisational comedy, (as in negotiation), is "offer" and "acceptance".  When one participant offers up a comment, the other accepts it and builds upon it.  Rather than disagreeing with an unwanted or unexpected idea or offer, the competent "player" simply says, "yes, and.." instead of "but, no..."  Consider the possibilities! 
     For example, where one party offers to buy a house at 10% below asking price with a 90 day escrow, instead of rejecting the offer, perhaps the seller's response would be:  "Yes, the price is very close to asking price, and if the buyers could close in 30 days, it would be a particularly attractive offer."  In response, rather than, "But we can't close that soon", the buyers could say, "Yes, 30 days would be agreeable, but we won't have the financing in place for 45 days since we need to close escrow on our own home".  "If the price was 10% lower still, we could probably get a bridge loan sooner."  Do you see how we are making progress here?
     Another lesson from Improv actors is not to ask questions, because they don't build on the story and lots of questions require the other fellow do all of the work on stage--inventing the setting, roles and action.  For example, in the image above, if one guy says, "What's for dinner?", the other has to invent a meal.  If his invention includes, "Spaghetti and meat balls", the other side cannot fairly respond with "and what's for dessert?".  Instead, it's his turn to say, "Yes, spaghetti is delicious and I can eat it all night with my hands."  In negotiation, asking questions can cede power to the other party, at least temporarily, putting both of you in the spotlight unnecessarily and risking giving away too much power and creating a negative interpersonal dynamic.  For that reason, you don't want to start a negotiation with, "what do you propose?" but rather by suggesting a proposal which can be refined as the narrative builds.
     Finally, improv actors are trained to maintain eye contact.  It's essential to send and receive physical cues and to deeply engage with one another.  In negotiation, serious listening, without distraction is critical to successful outcomes.  You don't want to lose sight of your objectives or your negotiating partner!