Competitive Position-Based Negotiation Tactics from the California Lawyer
(right, more fabulous Fincher)
Thanks to mediator Tom Matychowiak for alerting me to "Managing Expectations in Mediation," by Dan L. Stanford (under "Expert Advice" in this month's California Lawyer).
Tom noted that while most of the article addresses the management of client and adversary expectations, it concludes with these paragraphs:
Once you know who the mediator will be, always contact him or her and try to meet in advance of the mediation. If that is not possible, have a pre-mediation telephone conference. Focus only on the strengths of your case: If you represent a plaintiff, talk about the clear liability evidence, significant damages, your client's expectations of a big award, problems with the credibility of the defendant, and your willingness to try the case. Set the bar high. If you represent a defendant, focus on the strengths of your defense, including technical defenses, any persuasive evidence, and any credibility issues the plaintiff might have. Set the bar low. From both perspectives, provide the mediator with everything that serves your interests. [emphasis in the original]
At the mediation, continue this effort and work even harder at it. If the other side convinces the mediator that you will accept a lesser result than advertised, your chance of success will plummet (and you may end up facing a very unhappy client). On the other hand, if you convince the mediator that your adversary is willing to give more to settle than is on the table, you may well be on the way to having a successful outcome and a satisfied client.
Comments?
Well, mediation advocacy advice at its confused best.
I see nothing wrong with counsel "managing the mediator" except that in most cases it is not a good use of time since the mediator, although having more power than most of us would admit to, does not decide the outcome.
A focus on communication in the process rather than "managing" might be better for clients?
I am surprised by this as mediation is so well known, and widely used on the west coast.
It is interesting how counsel want to empower the mediator rather than persuade the other side!
We have of work to do with lawyers, don't we?
Colm
Thanks for the observations, Colm. I think we have a lot of communicating to do.
One of the problems in our practice is that mediators write and talk to mediators and litigators write and talk to litigators, which is why I was so happy recently to engage litigator Max Kennerly in a blog-versation about settlement practice.
Even now (4 years into a neutral practice) I still WANT TO WIN and think I SHOULD WIN and feel an injustice has been perpetrated if I DON'T WIN.
I'm only handling a couple of matters now (anonymously) but have two appeals going -- one that we won (as we most righteously and justly should have) and one I'm not so sure about -- my argument is good and the opposition's isn't as good as I would have written had I been on the other side. I think in a just world I should probably lose this one, though. Still, I think I'll win because I'm the better advocate and the cannier strategist.
Victorious appellate case #1 is back in the trial court and I frankly wouldn't advise our clients to settle for less than 70% of what they could get at trial, which is really 100% from my standpoint because I believe the pre-trial, trial, post-trial outcome is too over-determined to predict a greater chance of prevailing than 70%.
No one could convince me at this point that I'm WRONG. Certainly not a mediator who's had the case for a couple of hours after I've lived with it for years. I don't know what the other side thinks. I believe they're SO WRONG that they're totally stuck because the appellate opinion in my client's favor was a crystal clear prognostication of their eventual defeat and yet they continue to fight.
A great mediator or settlement judge would have to dive down into the parties' interests, i.e., their stomach for the expense and uncertainty of continued litigation; the (minimal) disruption of their business activities; or, because the parties are both repeat players, the chance that a "win" on appeal no. 2 would create bad precedent for one party or the other.
Would I still try to persuade the mediator to attempt to persuade the opposition that it is WRONG, WRONG, WRONG. Yes, I would. I'd think, you know, the CLIENT must not have been exposed to the winning argument. The attorneys on the other side must have oversold the case; the mediator can reach the client representative.
I don't know if I'd want myself as a litigator after 10 years of mediation practice. I'm afraid I'd lose the sense of certainty and injustice that makes me fight so hard for my client. Given that we're IN an adversarial system, how much sense SHOULD collaboration toward a "mutually palatable" settlement make?
Some cases just need to be tried.
Taking things with a grain of salt, having been involved in mediation for more than twenty years, I must say that if you convince a mediator, that tends to transfer into environmental effects that are persuasive.
Should it be the primary game? No. But a side focus, part of a coordinated strategy? Always. Just don't let it distract you as a party.
Vickie is your post tongue in cheek or is it meant to be taken seriously?
Your arrogance and self-righteousness is astounding.
It's a good example of why people don't care to speak to lawyers though.
I feel sorry for you that you are so insecure that you have to puff yourself up and criticise your opponents. Truly great lawyers don't do this.
Even moderately competent ones don't either.
Thanks for coming by to comment Rob. I certainly expose myself to charges that I am arrogant when I make my own litigator's thought processes transparent.
It's NOT tongue in cheek, actually, and is likely evidence of the self-serving and confirmation biases as well as of reactive devaluation.
My reason for the lengthy comment which you may well be justified in condemning, was not to "puff myself up" but to show what a difficult task mediators have helping lawyers (like me!) see that the other side's case has some merit.
The case about which I write is genuinely one where I believed not only that I had the better facts and better law on my side, but also that in this one case, I was also the better lawyer.
That's was not, of course, always true in my legal practice and I've always been happier when my opponents are as capable or more capable than I am. Fewer frivolous motions; earlier settlements.
If I had to grade my work overall, I'd say I'm a B+, A- litigator and a C trial attorney because I fell out of trial practice too many years ago, settling everything or winning (or losing) on pre-trial motions. Of course there were days I'd give myself an "F," but I've always been my harshest critic.
After 25 years of practice, I believe I have a pretty good sense of what good and bad lawyering are. I've been good; I've been bad; and, I've been in-between and so have the lawyers arrayed against me.
Again, this example was not meant to blow my own horn, but as a window into the mind of a litigator on those occasions when they're completely convinced they're right. With a dynamite evaluative mediator, I might come to see the error of my ways OR the other side will come to see the error of theirs OR we'll both get more realistic about our chances at trial.
It's just not always an even match. I don't know what your business is, but I'll bet whatever it is, if you've been doing it for a quarter of a century you can identify best practices and, observing a fellow professional or craftsman, can "grade" their performance as well as you can your own.
Thanks for calling to my attention how arrogant someone saying "I'm TOTALLY RIGHT and THEY'RE TOTALLY WRONG" can be. I have to tell you that 70% of the attorneys for whom I mediate and 99% of their clients are TOTALLY CONVINCED that they're right and the other side is stupid, uninformed, incompetent or evil.
We all do our best at the end of the day with what we've got and none of us are really very good at seeing ourselves the way others do.