Always Clarify the History of Negotiations

It happened again last week.  Plaintiff's brief indicated he had made a Statutory offer to compromise at $100,000 in November.  The mediator takes him at his word, though I check to make sure that he is willing to begin the negotiations at that number, and not, as sometimes happens, at a number higher than that since the offer to compromise has already lapsed and expired.  Then at the mediation, it comes out that the previous offer was never served on the other side.  Those high stakes that are presented when a party makes a written demand, which may serve to either open the insurance policy if there is a verdict beyond it's limits or give the offeror the right to collect fees and costs if the verdict comes in above that amount are all off.  This error in both communication to the mediator and to the Defense counsel cost the Plaintiff plenty.  After two and a half hours, the parties' stalemated because Plaintiff's counsel wasn't prepared to negotiate in a range that could have settled the case based upon his mistaken belief that he had already communicated the $100,000 demand.  The liens on the case were simply too high, and for the defendants, the stakes too low to worry about a real risk.  Even where there are assertions made that one offered something and one demanded something else, it's critical that these communications are clarified in advance of the mediation whereever possible. 
     In another example, which I discuss in the Chapter I call:  "Who Are you Calling Old?" in my upcoming book, "View from the Middle of the Road:  A Mediator's Perspective on Life, Conflict and Human Interaction", the Plaintiff's attorney told the Defense Counsel he thought his case was worth "mid-six figures".  Believing he meant $150,000., Defense Counsel invited Plaintiff to participate in a mediation.  When the first demand was made at $1 million, Defense Counsel was incensed.  But did Plaintiff's counsel mean mid-six figures was $500,000.?  Both cases eventually settled at what was probably a fair value, but clarifying these pre-mediation settlement discussions at the outset or before the hearing begins can save hours of anguish for parties and counsel.

Resist the Temptation to Negotiate too Soon

Participants in mediation usually know how it ends:  there is a negotiation and one party agrees to pay money to the other.  So why not get right to it?

I am struck by a lot of dialogue that has gone on in the mediator's blogosphere since the fatal shooting of a party to a mediation and his lawyer by an aggrieved party during a mediation in Phoenix.  The most telling comment I saw was offering some humility to mediators.  Though the disputants may know one another well, we have usually less than a full day to get to know two parties, their attorneys, the facts and legal claims.  In truth, we have no real idea of who these disputants are, have been or may become. 

What we do know is that even the most mundane of commercial disputes are rarely solely about the money involved.  There is pride, there is ego, there is a lack of respect or communication or both.  There is deep hurt, shame and sometimes status at stake.  Taking time to listen, attempt to comprehend and then communicate in ways that have not been understood or respected prior to that day takes time.  If you skip a step and rush to numbers, you will undoubtedly sacrifice some of the true benefit offered by this alternative dispute resolution process.  A jury or judge can decide who is right and who is wrong and what the value of the case should be.  A mediator offers a chance to do more than that--if you listen for the cues.

Rehearsing Your Lines for a critical Scene

Actors rarely ad lib, though they present their character with the utmost of conviction.  Trial lawyers carefully rehearse their opening arguments and sometimes their key examinations.  So why do we presume to relax the rules at a mediation simply because it's an informal process?  From my perspective, when you ask your mediator to deliver some message that she thinks may come across as outrageous, it's worth a brief rehearsal.  Likewise, when you are asking your mediator to bluff in the negotiation stance, or to hold on to confidential information which the other side may find critical to a better evaluation, it pays to rehears the scene before deputizing your messenger.  The third reason I like to rehearse my lines is because occasionally, when you play back a ridiculous message, the sender will push "delete" instead of "send".  We can all take care not to haphazardly deliver critical lines in the course of a mediation by a simple rehearsal.  That way, if the message comes across as arrogant, deceptive or mean, you can work on ways to soften it before it is delivered, or come up with new lines altogether. 

Another advantage to rehearsals in mediation is that your mediator may be able to reframe the message to take the sting out.  So, for example, if you are about to offer "nuisance value" and it happens that the dollar amount equates to one month of lost salary, or one month of rent or one semester of tuition at a local community college, she can communicate the offer in a more positive light, thus creating a more receptive adversary--one who is not insulted or offended, but encouraged and respected.

Check the Mediator's Personal Biases at the Door

One of the tools that is most difficult to employ as a mediator is to check your own biases at the door.  This week, for example, I had two mediations which challenged me to do just that.  The first was a retaliation in employment case brought by a young man who was the same age as my son-in-law.  I tried to imagine how my son-in-law would react to the issues brought in.  In that case, the young man had learned that his manager was engaged in some criminal misconduct and reported him to the police.  Thereafter, he was removed from this man's supervision and later experienced other employment consequences leading to making a claim against his employer for retaliation for being a whistleblower.  No matter which way I struggled, I couldn't imagine any of my son's finding themselves in that predicament.   It was only after the case was settled that I realized that I was bringing myself and my own pre-conceived notions of justice and integrity into the hearing.  Big mistake. 

The second case was a landlord/tenant case against a lawyer and his wife who had rented a beautiful home on the beach in Southern California and then discovered a number of problems with the property, ultimately withholding several months of rent.  I assumed that one would be easy for me.  I knew that a lawyer has a certain earning potential and that likely this would simply be a discussion of an offset for the defects in the property.  Not so.  I had no concept of how a lawyer and real estate broker could actually fall so far into debt far that they could not afford to pay their own rent.  That one left in an impasse over less than $10,000.

This is merely a cautionary tale about bringing personal biases into the mediation conference room.  If you sense that your mediator is not sufficiently detached from the litigants or their story to do this, try taking him aside and expressing that concern.  It may be enough to re-focus the mediator and get the job done.

TIMING AND ASKING HARD QUESTIONS

At this time of year, we are acutely aware of timing.  This can affect your mediation in ways of which you should be conscious.  This week, consider the following Mediation Tools:
3) Timing:  In an employment case, does your client want the damages to be taken in this calendar year when earnings are less than last year? Does your client want to settle the lawsuit so that he can return to work without compromising his claim to future lost wages? Can your client afford to suffer further lost earnings for the sake of building damages in the lawsuit?  Does the Defendant have an idea of the value of the claims so that they are fully prepare to negotiate a final resolution? Have critical depositions been completed? Do the parties need to approach that "fiscal cliff" by getting very near to trial in order to be ready to fully settle the dispute?  Does one or the other party need to experience the "brinksmanship" that the U.S. Senate did before they can arrive at a compromise?  These are issues worth addressing in every mediation.
4) Ask the Hard Questions:  Mediators can be most effective if they ask the hard questions of the lawyers or their clients at the outset or even before commencing the hearing.  So often, the events that occurred at the time the dispute arose caused one party to make a decision to pursue a lawsuit and the other party to resist settling the claim.  Take, for example, the dog bite case where, instead of apologizing and offering to pay for medical attention, the owner screams at the victim about scaring the animal.  Upon inquiry, say that dog owner refers the victim to her lawyer or insurance carrier, instead of offering to take care of the bills directly upon presentation.  Where does the victim go next?  Often to a lawyer!  At that point, the communication between the two disputants has completely broken down and settling the lawsuit without formal intervention through a neutral becomes nearly hopeless.  Once you have made clear to the mediator the basis for the dispute and the particular dynamics between the parties, it may be much smoother to resolve the dispute than it was "on the street" without your assistance and the intervention of a neutral third party.

INTRODUCING MEDIATOR'S TOOLS

Great news:  My upcoming book, "View from the Middle of the Road:  A Mediator's Perspective on Life, Conflict and Human Interaction" is out for publication by April, 2013.  This year, I'll be featuring excerpts from the Appendix, which contains 120 "Mediator's Tools".  Here are the first two:
1) Clarify the Issues in Advance of the Hearing:  Litigation can be messy.  Mediators should take care to completely and accurately understand the status of the claims and the parties to the dispute before the hearing begins.  For example, sometimes you'll receive a brief where certain defenses are vigorously asserted, yet have not been raised by the pleadings.  Are they really alleging fraud or do they just think the Defendant lied to them?  Has the Court already ruled that the claim is not barred by the statute of limitations or is it really possible it will get thrown out before trial?
2) Pre-Hearing Telephone Conferences:  Both litigators and mediators should be deliberate about talking to one another before the mediation about those nuances that have kept the parties apart.  What are the dynamics between the principals or lawyers that have become obstacles?  What evidence has already been produced and what is still unknown or unclear?  What does your mediator really need to get your client the best result at the hearing?

My colleague and client, Alex Craigie recently interviewed "Six Top Neutrals" for his blog, "At Counsel Table" (including me, thanks Alex!).  In all six, both Mediators and Counsel agreed that preparation for a successful negotiation is paramount.  In this week's featured Neutral Profile in the Los Angeles Daily Journal, my friend and colleague, Scott Markus was noted for his pre-mediation telephone conferences with each side, which sets the stage for positive outcomes.

Happy New Year and pick up the phone before you attend your next mediation.  There are still a few things that can not or should not be communicated via e-mail or in writing!

Soon to be published: "View fom the middle of the road"

I'm thrilled to announce that my first book will be out by April, 2013.  Watch for cover designs and excerpts from, "View from the middle of the road:  a mediator's perspective on life, conflict and human interaction".  Now, more than ever, there is a call for peacemakers who can demonstrate compassion, listen with empathy and assist disputing parties in finding ways to end their disputes without resorting to violence or submitting their conflict to a judge or jury of strangers.  Harnessing the good through compassion  and understanding is what this book is all about.  Stay tuned here for updates.