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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....

She Mediates

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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...

Joint Sessions and Unicorn Settlements

Max Kennerly over at Litigation and Trial has graciously and profusely responded to our call for comments about the road-blocks to achieving optimal negotiated resolutions to litigated disputes.

Because Max and I are straining toward the same goal every litigant does when the burdens of a lawsuit begin to outweigh its anticipated benefits, I'm going to include my readers in the conversation.

Our Interests are Adverse, Not Mutual or Intertwined

Max suggests that the hypothetical "business school" negotiated resolution doesn't provide litigators with much guidance in resolving litigated disputes because the buyer-seller-mutual-or-intertwined-interest template cannot be comfortably laid over a conflict between parties whose interests are entirely adverse.  As Max explains:  

The parties to a lawsuit do not have intertwined interests: they have directly adverse interests. Unless there's some possibility of a future relationship, the defendant doesn't want to resolve the conflict: they want the plaintiff to drop their frivolous claim. In their mind, their best alternative to a negotiated agreement ("BATNA") is for the plaintiff to crawl in a hole and die.

Same with the plaintiff. Unlike buyers and sellers, who usually don't get much joy out of their 'conflict' as a conflict, the plaintiff usually prefers imposing a conflict on the defendant (who the plaintiff believes cast the first stone) in pursuit of justice, an imposition they will only relieve for at least "full"  compensation. 

The problem is that most parties don't consider their claims to be assets; the problem isn't that there's emotional baggage around the economic understanding, it's that the parties interpret their dispute as fundamentally non-economic. 

Before moving on to adverse/intertwined/mutual interests, I want to emphasize that what the parties "interpret . . . as fundamentally non-economic" is the key to the settlement of litigated disputes -- not a roadblock. 

Nor can the feelings that accompany litigation be called  "emotional baggage" unless we interpret the desire for justice as pathology. 

This hunger for justice is so fundamental to our social relationships that even  primate relatives like  capuchin monkeys will deprive themselves of food if they sense it is being distributed unfairly.  In capuchin monkey land, injustice appears to consist of being required to do five times more work to "earn" the same benefits as another.  

People seek out lawyers rather than therapists to resolve the emotional issues that accompany conflict -- because they believe themselves to be victims of  injustice and lawyers are in the justice business.  Our clients have not simply suffered an injury (tripped over their own feet) but have a wrong (stumbled over a trip wire placed in their path by a malicious or careless actor).  We can explain until we're blue in the face that money is the only remedy the law can provide.  Our clients will continue to seek justice and will not easily settle for money alone.  

"The Unicorn Settlement"

Max asks that I acquaint him with the Unicorn -- the state "where two hostile parties on the verge of a lawsuit get lawyers, almost file suit, and then, through deft representation, settle their differences peacefully and move on" Unicorns. Excluding business disputes where the parties have an existing and potentially mutually beneficial on-going relationship, this type of settlement, says Max, is a myth.  He explains:

I entered the law expecting The Unicorn to be rare but real; by this point, I have been trained by defense lawyers not to bother to check for it. I still usually do, throwing out what I think is a perfectly reasonable offer early on, which is routinely ignored or dismissed by a letter that gratuitously refers to my claims as baseless, frivolous, or made in bad faith.

So that's my biggest question to you: how do you suggest I get defendants, prior to the courthouse steps, to even enter the mindset that there's a valid claim and mediation / settlement should be considered? Reframed in words closer to your post: what can I do to (a) get the joint session to happen and (b) ensure everyone's in the right mindset?

The Conditions in Which Unicorns Flourish

When I started practice -- in 1980 -- I did so in a small community -- Sacramento -- where everyone was a "repeat player" with everyone else.  Perhaps more importantly, you could file a suit in year one and try it to a jury in year two.  Not only defense counsel, but insurance adjusters, knew which plaintiffs' attorneys would try cases and which would not.  They also knew which ones could persuade a jury to bring back a hefty award.    

Though I only handled personal injury litigation for my first two years of practice (after which I changed firms and moved on to commercial litigation) I saw dozens of "unicorns" in my first few months of practice.  As the junior-most attorney in a small P.I. practice, I settled hundreds of cases without ever filing a lawsuit -- on the telephone with insurance adjusters.  (A really, really good reason to leave PI practice, but that's another story). 

I settled these cases in the world of "three times specials" at a time when and in a place where everyone knew one another and used a common metric to evaluate potential liability and damages.  In that environment, Unicorns flourished.

Unicorn Hunting in the 21st Century

Max isn't asking me to shoot ducks in a barrell here.  He's asking me to deliver the holy grail of mediation -- how to convene an early settlement conference in which the parties (and their attorneys) are united in a desire to settle litigation without protracted discovery or pre-trial procedural wrangling.  

I hate to keep leaving my readers on the edge of a satisfactory resolution, but I DO have work to do and will return to this -- and Max's further observations -- soon, really soon.  Stay tuned.  And join the conversation by leaving your own comments here.

Comments (1)

Read through and enter the discussion by using the form at the end
Gavin Craig - August 12, 2008 3:05 PM

I have to agree with Max on the environment of business litigation. Parties that have expectations of future business don't often sue each other, although when they do there is another lever to pull to try to resolve the case.

I really like the idea of an early mediation, but only if I think we can get somewhere. Max's story about no responses to offer letters is common, and (if I can be a little cynical) in some cases can be explained as the lawyers wanting to bill more on a case before they get serious about a settlement. I am not suggesting that this is a universal motive, and I have had clients that refused to negotiate, and instead wanted me to bring additional claims.

Another tactic is to schedule a pretrial conference with the judge early in the case. Some judges have a strong impression on clients and can push them toward settlement.

Business litigation is usually (but not always) about money. The plaintiff wants more and the defendant(s) don't want to pay anything, or much less than the plaintiff claims, or think they should be paid. I often tell clients and colleagues that parties are almost always better off making their own decisions, rather than rely on others to make the decision for them.

I too am looking forward to your thoughts and comments.

Gavin Craig

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