Ten Settlement Conference/Mediation Traps for the Unwary
1. Leaving stakeholders at home
Who's a "Stakeholder"?
Anyone who can green- or red-light the final agreement.
Why Can't They Simply Be Available By Telephone?
For the same reason you don't want your jury to "call in." A settlement negotiation is part process, part presentation, part drama, and, part human interaction.
Those who don't participate will never understand the principled reasons for the settlement achieved by day's end. I cannot tell you how distressed many (particularly young) attorneys are when the "partner in charge" or client questions their wisdom (or sanity!) for recommending a settlement that no one but those in the room could possibly understand in all of its texture and dimensionality.
Leave stakeholders home at your risk. Not only might you blow a significant chunk of change on the mediator's fee, you risk losing a day's worth of time for yourself and your client "representative." Perhaps more importantly, this particular settlement opportunity may never present itself again.
2. Leaving too soon
"Americans" (and I use the term loosely for anyone, citizen or not, who buys retail) become uncomfortable after two or three bargaining "moves," i.e., offer, counter-offer, counter-counter, "I'm outta here."
Unfortunately, lawyers have readily at hand the legal version of a weapon of mass destruction -- the threat of which is usually phrased as "see you in court, buster."
Until the mediator or settlement judge tells you that she/he is convinced the parties' aren't already secretly in agreement, i.e., willing to accept a settlement within the other's "bottom line," you risk losing the best deal you're likely going to get by leaving the negotiation too early.
3. Failing to take clues from the mediator/settlement conference judge
Just as you will always know more about your bargaining position and the business interests underlying it than the mediator does, the mediator will always know more about your opponent's bargaining position and ability to settle the lawsuit than you do.
Remember, the mediator is honor bound not to disclose information that is highly beneficial to your bargaining position. Unless you've hired a disreputable or simply unreliable mediator (and you know who they are after you've hired them once) don't ignore the mediator's suggestions that a little patience with the process might result in a big reward for your client.
4. Failing to strategically use joint and separate caucuses
To everything there is a season . . . .
Rigidly adhering to any negotiation or settlement conference format reduces your ability to strategically use whispered confidences in the hallway; candid conversations between counsel without their clients; meetings between the mediator and a difficult client without his/her/ attorney; discussions between the mediator and one or more of the attorneys without their clients; and, meetings between the disputants without anyone else's presence.
There are dozens of different permutations and combinations of attorney-client-mediator dyads, triads and the like.
Think about it. Each different relationship draws out of us someone slightly different. We're more or less comfortable, deferential, authoritative, subject to persuasion or persuasive depending upon our "audience."
During the course of the mediation, the mediator learns about these dynamics and is able to use them toward what should be the mediator's goal -- to serve as many of the parties' interests as possible in an agreed upon settlement by day's end.
Not only should you listen to the mediator about these dynamics, you should hip the mediator to those you likely understand better than she/he ever will.
The mediator is your team mate. Don't miss the opportunity to call as many game "plays" during the day as possible.
5. Letting the Judge or Mediator Act the Bully
It's always easier to get what you want by talking about the reasons you desire or need it than by bullying the other side into accepting what you want.
A judge or mediator who is bullying you or your client to settle simply hasn't gotten the knack of asking questions and creating opportunities. He/she is still too used to wielding power. If it's important enough to spend your day mediating, it's important enough to tell the Judge or mediator that you or your client are feeling bullied and would prefer to explain your interests and positions than to be pressured to accept a deal you're not comfortable with.
If the Judge/mediator is unable to shift from power to collaboration, try to get as much out of the negotiation as possible and find yourself a new mediator for the next settlement conference.
6. Believing that any competent judge or mediator can help you achieve the best settlement.
Face it, you wouldn't hire a personal injury lawyer to try your complex insurance coverage action. Nor would you hire a Skadden Arps attorney to handle a motion to increase your spousal or child support.
Mediators are not all-purpose "peace-makers" or negotiators. As Colin Powell has said, the most important factor in an international diplomatic negotiation is to "be inside the other guy's decision cycle."
What does that mean? In a personal injury case, it means understanding the claims adjusters' levels of authority and pressures to bring back to the office a settlement that is in line with similar cases -- better than those of his or her colleagues if at all possible. In a commercial case, it often means satisfying not only General Counsel, but the CEO or CFO or even the shareholders.
It's not so much the law the mediator needs to know, as it is the culture in which the law is being applied.
Listen. I've been retained for the sole reason that I'm a woman. I'm not wild about this because I bring 25+ years of high-level commercial corporate legal experience to a mediation and am much much more valuable as a commercial mediator than I am as any random woman with a little skill in law or mediation. But it's ok because I am a woman and there are times when that's important to the settlement of the matter. There are some things that you just need a woman for. And some you need a man or an African-American or a Korean or an expert on the construction of toilet seats for. You should be thinking about all of these variables.
Most of all, you should choose a mediator or settlement judge who you believe is most "inside the other guy's decision cycle." Would Colin Powell steer you wrong? Well . . . . about something other than the War in Iraq?
7. Sidelining Your Client on the Day of Mediation
If you've been practicing for more than, say, five years, you know that your client never tells you everything that is important to its case. If you had the luxury of trying cases to a jury early in your career like I did, you learn this most quickly at trial. Usually when you receive a copy of a subpoena of someone you've never heard of.
"Harold," I said as a first year associate second-chairing the third trial day, "who is Jean McCarthy at the Sutter Mill Nursing Home?"
Harold, the Plaintiff, who was retired because of his injuries, hadn't worked at all for the last five years and had already given moving testimony to the jury about how difficult his life had been.
"Uh," Harold responded, "she's my . . . . uh . . . boss."
"Well, I've been doing odd jobs for the Nursing Home for the last several years."
Don't miss the opportunity to let the mediator have a little chat with your client and learn both the good and the bad of your case -- some of which you may well not yet (or ever) be privy to.
8. Failing to use the Mediator to Help You Bring Reality to Your Client.
This differs from Trap No. 7 but has some of the same causes. When your client explains his/her case to you, he/she presents it in the very best light. Your side of the case rarely gets better over time. Your client, however, has not had the same opportunity to see the "dark side" of the case as you have during discovery. Your clients often feel as if you're betraying them if you point out the differences between your view of the case on Day 1 and your view of the case on Day 632. Let the mediator help you out with that.
9. Failing to Maximize the Mediator's Strategic Skills
The mediator is your partner. And you are his/hers. Take the time to learn and maximize your unique skill-sets and knowledge to the highest advantage.
10. Negotiating in the Nano- and strato- spheres.
Spending a significant amount of time negotiating numbers that are far out of the range of potential agreement is not only a waste of everyone's valuable time, it strains the parties' patience and often results in impasse even when the parties' "zones of potential agreement" overlap.
One of the parties has to have the courage to step up to the line of potential impasse at some point in the mediation. The person who does so first will always gain the bargaining advantage as a result.