The Tip of the Ice Berg
INTEGRATIVE OR INTEREST-BASED BARGAINING IN CONSTRUCTION DEFECT LITIGATION
I had the great good fortune to study construction defect mediation recently with two masters of the trade,George Calkins and the Hon. Kevin W. Midlam (Ret.). These two know their way around a construction site; a courtroom; an insurance policy; the law; and, ways to manage and resolve complex construction litigation better than anyone I've ever met.
Though we didn't engage in much "mediator speak" at the seminar -- integrative bargaining and the like -- it's clear that you need to know what Calkins and Midlam have to teach if you want to explore anything other than the tip of the CD iceberg. I did, however, tell one interest-based negotiation story in class that piqued the curiosity of a few classmates. Because it illustrates the potential to reach the parties' interests when you don't know what a cripple wall is, I repeat it here.
I dropped by Judge X's courtroom not long ago as she and Mediator Y were helping the parties settle up with the last couple of subcontractors involved in a Southern California residential development. The sub and his attorney were served late in the case; substantial attorneys' fees had already been expended; and, and the sub's attorney had promised not only complete victory, but reimbursement of all attorneys' fees in the process.
Mediator Y had reached impasse and Judge X was on the bench. They thought they could get the contractor to cut the sub loose for a dismissal with mutual general releases. The sub and his attorney were resisting this generous offer. Since I'd dropped by, could I help?
Sitting in the Judge's chambers, the sub's attorney immediately launched into a tirade about the injustice of his client's having being dragged into the litigation; his planned strategy for victory at the upcoming trial and the reasons that victory would be capped by a successful malicious prosecution action. The sub himself seemed enthralled with his pit-bull counsel and all discussion about the merits of their position made both men dig their heels in deeper.
I'm not certain when I began to realize that the attorney's bravado signaled something closer to a plea for help than a cry to battle. The thought surely originated when I started asking questions about the likelihood of victory in hard percentages.
"I can't guarantee anything," responded counsel gruffly. "I never predict victory for my clients. There are too many variables."
"O.K.," I replied, "but you've advised Mr. Sub he's likely to win at trial, right?"
"I never told him we'd win; of course not, no attorney does that. The decision to settle or not is entirely up to him. That's what I told him."
"I do what my attorney tells me to do," the subcontractor replied.
"And I told him he's the one who makes the decision," his attorney said.
We talked in circles like this for another ten or fifteen minutes, just moments before Judge X and Mediator Y were due back in chambers. It's not, of course, uncommon for an attorney to raise his client's expectations to unrealistic heights only to find those predictions resting on a firm foundation of likely defeat. And though the mediator often has to deliver bad news to the client that the attorney can't, I didn't think either were ready to "lose" the litigation this afternoon.
So I took a deep breath and leaped into the unknown. Just as the Judge and Mediator were stepping back into the Judge's chambers I was saying, "I haven't been involved in all of the negotiations, but I don't think any of the other sub-contractors were dismissed without paying any money at all."
The first question to the Judge as she settled herself back into her chair was whether I was right. Was his client the only sub-contractor who would be released without paying any money at all?
The judge looked at me knowingly and said, "yes. I've been involved in all of the negotiations. The mediator and I have asked the contractor to dismiss your client in exchange for a release of all claims and that's the offer we're bringing you. Your client will be the only sub-contractor to be dismissed without contributing to the settlement."
At this, the sub-contractor's attorney turned back to me.
"You won," I said.
Consent quickly followed.
In this case, as in so many, settlement was not achieved by force of personality, persuasive argumentation or some ineffable "mediator magic." It was achieved by exploring the interests of both the party and his attorney; interests lurking just below the tip of the negotiation iceberg.
That's "interest-based" or integrative bargaining. Enlarging the fixed distributive monetary pie by exploring -- and attempting to satisfy -- the non-material motivations and needs of the parties. We'll be exploring this topic in greater detail throughout the following week.
In the meantime, if you're a construction defect litigator or mediator and ever have the opportunity to take the Straus Complex Construction Dispute course, sign up immediately. It's the best weekend course I've ever taken.
For more on integrative bargaining see Beyond Intractability's "Knowledge Base Essay" on the topic here. For ease of reference I've copied some of that essay verbatim below:
Integrative bargaining (also called "interest-based bargaining," "win-win bargaining") is a negotiation strategy in which parties collaborate to find a "win-win" solution to their dispute. This strategy focuses on developing mutually beneficial agreements based on the interests of the disputants. Interests include the needs, desires, concerns, and fears important to each side. They are the underlying reasons why people become involved in a conflict.
"Integrative refers to the potential for the parties' interests to be [combined] in ways that create joint value or enlarge the pie." Potential for integration only exists when there are multiple issues involved in the negotiation. This is because the parties must be able to make trade-offs across issues in order for both sides to be satisfied with the outcome.