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IAM Blog: Michael E. Dickstein

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Strategy or Bad Habit?  Avoiding Lawyers’ Most Common Mediation Pitfalls
By:  Michael E. Dickstein, IAM Distinguished Fellow
Email:  md@DicksteinDisputeResolution.com

You might think lawyers are trying to achieve bad outcomes in mediation, based on approaches like:

 1.      Insisting on keeping everything confidential from the other side, including not sharing the mediation statement with them.

         Problem:  Many lawyers perceive information to be power and believe that keeping information from the other side gives them power.  Given that fewer than 5% of cases go to trial, saving powerful information for trial is like paying for asteroid insurance instead of fixing a hole in your roof.

         Solution:  Share key information well in advance of mediation.  Unlike surprise at trial, surprise at mediation generally leaves the other side feeling suspicious, betrayed, concerned about other information being withheld, and unwilling to make a decision at the mediation.  Also, remember that many entities need significant lead time to be able to make a decision, including:  insurance companies, government entities, large corporations with absent decision-makers, and coalitions of plaintiffs’ counsel.

2.      Failing to consider that there probably is no “they” in the other room.

         Problem:  In private discussions, lawyers often refer to the other side, collectively, as “they”.  It is not uncommon to hear statements like:  “they are here in bad faith to get free discovery”, or “they obviously don’t want to make a deal”.  This assumes that everyone on the other side has the same motivations.  And
that can lead you to take positions that simply align everyone on the other side again
st you, give power to the most intransigent members of the opposing party, and make it impossible to achieve the deal you are seeking.

         Solution:  Use casual contacts, the mediator, and joint sessions to try to uncover the positions and motivations of the various lawyers, parties, and party representatives, and to find arguments that will appeal to, and give power to, those most likely to agree with you.  Remember that any offer made by the other side is usually the result of internal negotiations.

3.      Rushing to caucus, rather than taking full advantage of joint sessions with the other side.

         Problem:  Many lawyers avoid joint sessions because they are afraid of alienating opening statements and want to move as quickly as possible to exchanging offers.  Those lawyers miss a unique opportunity to speak directly to represented parties and key decision-makers (even if appearing not to), to set a positive tone for resolution, to size up the various players on the other side (and the differences between them), to assess how the other side feels about their arguments, to better understand the other side’s true motivations, to look for unexpected common ground, to clear up misunderstandings and to clarify numbers-related issues (such as damages calculations).  By definition, it takes twice as long to convey information through the mediator than directly at a joint session.

        Solution:  Constantly assess whether the current segment of a mediation would be best conducted in joint session or caucus.  Don’t assume joint sessions are nothing more than attacking opening statements.  There is much that can be done together beyond traditional openings.  Don’t rule out all opening statements because you have had bad experiences with them before.  Think about whether there is anything either side could say that would be productive.  Avoid saying alienating things, and say difficult things in the least alienating way possible.  Set ground rules to avoid attacking openings.  Remember that to avoid saying unwelcome things by having the mediator say them merely transfers the other party’s resentment from counsel to mediator.

4.      Starting the monetary part of a negotiation too high or too low.

         Problem:  If counsel begin monetary negotiations at numbers that are too extreme they can end up with worse deals than if they had started at more reasonable numbers.  They can also end up with no deals at all.

         Solution:  Make a strong offer that will still be perceived as potentially leading to a deal.  The farther you start from where you hope to end, the larger jumps you will have to make to reach a deal.  This can be perceived as caving in.  And it risks never finding out what the other side would have done, because they walk away.  If you are plaintiff’s counsel, remember that a final demand which is higher than what defense counsel imagines could be lost at trial, is a guilt-free green light to litigate to the bitter end.

5.      Failing to understand, and explain to clients, that a first offer is a message and a bracket can be more than its midpoint.

         Problem:  No lawyer expects a first offer to be accepted.  And yet they are usually treated as actual proposals rather than as messages.  Clients become incensed by first offers they perceive as extreme, while still being anchored by their own extreme opening offers.  And any message is lost in the outraged focus on why that first offer is unacceptable.  Similarly, assuming all brackets (or ranges) serve the same purpose, and every bracket means its midpoint, destroys the usefulness of brackets to negotiate more quickly and transparently.  A relentless focus on midpoints leads to calculating the midpoint of the midpoints of each side’s brackets, which drives their offers apart, not together.

        Solution:  Explain to clients that the norm (in North American mediations) is to make a first offer far from where the deal will end.  Thus, clients should neither get attached to their own first offers, nor be dismayed by the other parties’ first offers.  Instead, it is important to seek the mediator’s help with conveying and understanding an offer’s message as to what deal is ultimately possible.  Brackets should be used and understood flexibly, with a focus on whether they are intended to convey a low point, a midpoint, a highpoint, a solicitation to negotiate in counter-brackets, an area of overlap, an area of non-overlap, or something else.

6.         Failing to ensure that there is someone on the team who can work easily with numbers.

           Problem:  A lack of facility with numbers can leave you vulnerable to someone very comfortable with numerical calculations.  It can lead you to accept deals you should refuse, and refuse deals you should accept.  Understanding only your own numerical analysis is like knowing enough of a foreign language to ask a question, but not enough to understand the answer.

         Solution:  Ensure that there is someone on your team who can manipulate numbers with ease.  It is crucial not only to understand your analysis but also the other side’s (and to have someone who can translate easily between the two).  A lawyer who works well with numbers will perceive available options/arguments that the other side misses and will avoid problems before the other side is even aware of them.

7.      Finally, assuming that just because something has been done before the other side will be convinced to do it.  Or, refusing to do something because it has not been done before.

         Problem:  Some counsel think the statement “That is the way I always do it” should end all discussion.  But, just because something was done in the past does not make it the best way to do it now.  More important, just because you did something before does not convince anyone that you found the best way to do it.

        Solution:  Be prepared to constantly evaluate new approaches and to weigh them against your interests and alternatives.  Do not get stuck in one paradigm.  Be prepared to justify the approach you advocate in terms that will convince the other side.

In summary: if what you are doing is on this list, it is almost certainly a bad habit.  Get rid of it and open the way to much better results.


© 2018 Michael E. Dickstein

Please note that each IAM Blog posting represents the view of its individual author, but not necessarily others associated with IAM. IAM Blog Editor-in-Chief Keith L. Seat may be contacted at kseat@keithseat.com.

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