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Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

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She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

There Are No Non-Relational Zero-Sum "Pure Money" Negotiations: Part I

Canadian Lawyer Michael Webster asks about Jay Welsh's comment (see videos) that "in a mediation the plaintiff has to settle for far less than they thought and the the defendant has to pay far more than they ever thought." 

"So," asks Webster, "this would be the lose/lose theory of mediation?"

I know when Michael's being sarcastic but decided to respond seriously by noting that Jay himself  used the phrase "lose-lose." 

I went on to say that the most valuable service I can often perform is to "break through confirmation and other biases/ ** that have interfered with case analysis and caused impasse."

Michael's reply was important:  

When the issues have been crystallized into legal ones so well, you are in a lose/lose situation. The manager's dilemma then becomes counsel's dilemma: how do I manage to convince my client to lose more than I ever predicted and still maintain my own credibility.

Though I'm a little tempted to be flip ("this is why they pay me the big bucks") Michael's question nails one of the most difficult issue attorneys must deal with in settlement negotiations.  It is certainly one of the most delicate tasks a mediator is called upon to perform.

First Let's Re-Visit Interest-Based vs. Distributive Settlement Negotiations, Asking Ourselves Whether There's Really Such a Thing as a "Pure" Money Case

My husband, with 35-years of complex commercial litigation practice under his belt is my attorney-mediator-communication weather-vane.  So I asked him over pancakes this morning, "Honey, do you think there's any such thing as a 'pure' money case?"

Two months ago, he would have said "yes," and given me that "you've changed too much" look.  I don't know why he said "no" this morning.  But here was the gist of his response.

"Every case involves someone's interests, whether it's the GC or a company executive, or even a 'little guy' down the management chain who made a decision that impacted the course of the dispute four or five years ago.  So of course there are innumerable non-monetary concerns that impact why the case is settled and when and for how much.  Then again, maybe I've just been living with you for too long."

So let me first say that there is no such thing as a non-interest based negotiation.  There are only negotiations in which we ignore the fact that party interests are at play.  

This is one of those nature/nurture mind/body duality questions.  Yes, it's "just" about money.  And yes, the money represents party interests.  It's nature and nurture, mind and body, budgetary constraints and party goals and relationships.

Here's another thing.  Although the disputing parties may never again be in relationship with one another, the people on each side of the conflict-fence are not only in daily contact, their well-being, livelihoods, self-respect, reputation, promotions, demotions, and salaries depend upon their on-going relationships with one another, which are all in play in every negotiation of every commercial dispute.

And one more thing.  Conflict cannot arise in the absence of a relationship.  Even though the disputing parties may never again be in relationship, they're sure the heck in relationship now.   And the relationship of the disputing parties from the moment conflict arises to the minute it settles has everything to do with its resolution.

There is no "zero-sum" game outside the realm of the virtual or the hypothetical.  There is no "rational" man.  People -- messy, conflicted, emotion- and interest-driven people -- are the necessary pre-requisite to conflict.  How we deal with apparent lose-lose conflicts, "manage" party expectations and deliver bad news in a way our clients can hear it in the next post.  Immediately hereafter.  

_______________________

**/   "Confirmation bias" refers to our "unwitting selectivity in the acquisition and use of evidence" in ways that are "partial to existing beliefs, expectations, or a hypothesis in hand."  See Confirmation Bias: A Ubiquitous Phenomenon in Many Guises by Raymond S. Nickerson of Tufts University.

Comments (3)

Read through and enter the discussion by using the form at the end
Michael Webster - April 26, 2008 7:30 PM

I really wasn't being sarcastic.

Jay's point to me was very illuminating: at one point, we are going to come to the distributive dilemma. The plaintiff is going to have to take far less than they ever thought, and the defendant is going to have pay far more than they ever thought.

Thought in the sense of counsel telling their clients what the value of the case was.

It doesn't matter whether there is a pure money case or not, at some point every legal case gets down to a pure money case, some quicker than others.

My observation should have been that mediators taught in the integrative/distributive school of mediation might be ill prepared to deal with the distributive dilemma.

Let me give you an example. At a recent mediation, my clients asked me in front of the mediator in private session "how good our case was".

Fortunately, I had thought a bit about how to respond to this. I said that I only took on great cases, but that they also had to listen hard to the mediator who, and I paraphrase, said "two go in, one comes out."

Counsel has to grease the slide to compromise without looking like a greaser. That is what I call the distributive dilemma.

Vickie - April 26, 2008 8:16 PM

You are right. At one point, there is always a distributive dilemma. Your method of responding to your client's question in the presence of the mediator is the best thing for counsel to do. Let the mediator explain the problems while continuing to bolster the attorney's advice. Frankly, this is why I'd now choose an attorney mediator rather than a former judge -- the attorney-mediator "gets" my relationship with my client; how important it is; how the case may well have gotten worse over time; and, how things change.

Michael Webster - April 26, 2008 10:26 PM

I thought that my mediator, who was an attorney, instantly saw what I was doing, and backed it up without threatening the client.

I hadn't thought about whether a judge would have seen the same problem so quickly.

But in Ontario, you don't get to be a Judge without having practiced for a minimum of 10 years - so perhaps it is not the same worry.

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