Mediation Strategies: A Lawyer’s Guide To Successful Negotiation
Every successful negotiation requires that you have a sound strategy. In this article I will explain the steps that I believe you should follow when developing a mediation strategy.
The Convening and Other First Steps
It's that time. You've just returned to your office from a case management conference.
"But You Were Supposed to be Neutral!"
Mediators, like other dispute resolution professionals such as arbitrators and referees, are commonly referred to as "neutrals."
The Pre-Mediation Conference Call
During most of the 22 years that I have been mediating, I did not require counsel for the parties to participate in a pre-mediation conference call. I have rethought that.
You Can Observe a Lot Just By Watching
My colleague and mediation trainer par excellence Steve Rosenberg says that you can learn a lot about how to negotiate and mediate by watching movies.
Seal It With a Kiss
Justice Antonin Scalia was in the Bay Area recently, speaking to students at the University of San Francisco School of Law. On the subject of trial advocacy he told them that they should learn how to take a complex case and make it sound simple.
The Hopeless Case
This article discusses the reason why many clients are adverse to mediation: "This is a hopeless case; we are too far apart." The common refrains about being too far apart explain why mediation is needed. If the two sides were close, they would probably settle the case on their own. The reason why they need a mediator is that they are polarized.
In 1997 the California Legislature enacted Evidence Code Sections 1115-1128, which established mediation confidentiality as an evidentiary exclusion in California. The purposes of this legislation were (a) to clarify and codify the law and (b) to encourage participants in mediation to be open and candid with the mediator and with each other. The central point of the law is that no communications that take place during mediation can be used in any trial, hearing, or other legal proceeding.
The purchaser of any service has to know in advance whether the provider can deliver high quality. If the purchaser happens to be a lawyer, and if the provider will be a mediator, how should the lawyer evaluate the potential provider?
On Being Understood
Continuing this month with our review of the Seven Habits of Highly Effective People, Habit No. 5 is to "Seek First to Understand, Then to Be Understood." Rarely do I see advocates in mediation who have mastered this habit. The duty of zealous advocacy almost always prevails, and lawyers seem to be generally better at speaking than at listening.
Begin With the End in Mind
Stephen Covey became famous twenty-five years ago for writing The Seven Habits of Highly Effective People. I recall hearing about this book a few years later during my first mediation training.
On Settling Employment Cases
All too frequently the employment relationship leads to disputes that result in litigation. Mediators see a wide variety of claims, such as wrongful termination, harassment, discrimination, and violation of wage and hour rules.
Judicial Activism and eDiscovery
Many attorneys shudder at the notion that the judiciary should choose (or at least strongly urge) the specific technology tools parties must use during discovery. The concern is based largely on the belief that many judges lack familiarity with the range of eDiscovery technology tools that exist today. Parties, mediators, attorneys and judges should familiarize themselves with these available tools.
Alternatives to Arbitration
The question whether arbitration is a good idea or not is constantly being debated. Those who believe that it is not a good idea should be aware that California law provides other alternatives to arbitration besides litigation.
Just the Facts, Ma'am
People often enter into mediation unprepared, unsure what information they need to bring to the table. This article discusses what information helps the mediation process and how the information is obtained.
Binding Mediation/Baseball Arbitration
This article explains one of the settlement options that mediators and clients can utilize. This option provides for binding mediation by including a hybrid dispute resolution process of binding arbitration.
Understanding Your Downside Risk
As a plaintiff in litigation, it is hard to imagine anything more frustrating than to get to the end of the road and to learn that you are may be the party writing the check instead of the one taking it to the bank. That is what happened to the plaintiffs in Goodman v. Lozano, S162655, decided this week by the California Supreme Court.
The Use And Abuse Of The Joint Session
Traditionally, mediations of litigated cases begin with a joint session in which the mediator invites both sides to explain their case. The mediator moderates the discussion to insure that each person has an opportunity to speak without interruption. Time may also be provided for rebuttals or to pose questions to the other side.
ADR And The New Alternative
Anyone who works in the dispute resolution field knows that ADR has always stood for "alternative dispute resolution." It is also common knowlege that the usual alternatives are considered to be arbitration, mediation, private-judging, and neutral evaluation. So "ADR" is commonly used to refer to any or all of those forms of dispute resolution. But, has this usage become misleading?
Customizing The Mediation Process
Back on September 1, I wrote about the “Task Force on Improving Mediation Quality.” The Task Force, which was formed by the American Bar Association Section of Dispute Resolution in 2006, was charged with conducting an investigation to identify the factors that define high quality mediation practice. You can find their Report on the Section's website.
The Unimportance Of Subject Matter Expertise
I have just read an excellent post from F. Peter Phillip's Business Conflict Blog. I am going to quote from it at length because there is no other way to do it justice. Peter has been reporting from the International Business Association Conference in Madrid and this post concerns a panel of corporate users who were asked whether subject-matter competence was an important factor in selection of a mediator. This question is one of those perennial topics that will always be debated. It is akin to the facilitative/evaluative dichotomy. Maybe Peter's post will settle it once and for all.
How Can I Get My Mediator To Be Evaluative?
I remember being asked this question a few years by a lawyer who was in the middle of a mediation of a complex case. When I asked who the mediator was, she answered with the name of a retired judge. I was surprised at first since we often hear about former judges who supposedly cannot resist the temptation to evaluate every set of facts that comes before them.<
An Offer He Can’t Refuse
Marlon Brando will always be remembered for saying: “I am going to make him an offer he can’t refuse.”
Evaluative Or Effective?
I have been thinking about my colleague Victoria Pynchon's recent post on evaluative mediators. There is a saying that "less is more." Or as we are somtimes told: don't overdo it, or don't try too hard. How does this advice apply to mediators?
Settling Personal Injury Cases
In my last post I discussed the need for thorough preparation before going to mediation. In particular, I noted the need to prepare the opposition, which may have surprised some readers. Why, you might ask, should I prepare the opposition as well as myself? Why can’t they prepare their own case?<
A mediation is not a war or a battle, but it is a negotiation. Every negotiation, just like a battle or a trial in court, requires thorough preparation.<
Mediation And International Diplomacy
The Associated Press reported on Saturday that “The United States’ top Mideast envoy [former Senator George Mitchell] failed to bridge wide gaps between Israelis and Palestinians as he ended his most intensive attempt yet on Friday, raising questions about President Obama’s efforts to revive peacemaking.”
Settle Your Real Estate Dispute Early -- And Save Big Money!
Two California appellate court cases, one of which has just been decided, illustrate dramatically the wisdom of settling real estate disputes. The amount of money spent on litigating these cases can be staggering and the results difficult to predict.
Jeld-Wen, Inc. V. Superior Court: Lessons In Mediation Of Complex Litigation
In Jeld-Wen, Inc. v. Superior Court of San Diego County D048782, filed January 4, 2007, the Court of Appeal for the Fourth Appellate District held that trial courts do not have the authority to order parties in a complex civil action to attend and pay for private mediation.
Mediating A Complex Construction Defect Case
In recent years a number of changes have occurred in CD litigation. The list of conditions which are now commonly claimed to be construction defects has become longer. Claims based on mold resulting from water intrusion are commonplace. Insurance coverage issues have become more complicated. And, discovery disputes are now a regular occurrence. These changes and others have prolonged the process and have adversely affected the prospects for achieving early settlement. The life of a construction defect case is now typically two to three years, if not longer. As a result a re-examination of the processes being used to manage and settle these cases has taken place. This paper discusses the techniques and procedures developed in the past which remain useful in CD cases, as well as new methods that respond to the current climate.
The Opening Demand
The reality is that the opening demand is often at least three times what plaintiff’s counsel thinks the case may actually be worth. Part of the explanation, of course, is that any good negotiator wants to leave himself plenty of room to bargain and so will always "anchor high."
Enforcing Agreements Made At Mediation
You and your clients have just gone through a lengthy mediation. After hours of hard bargaining, a settlement finally is reached. How should you memorialize your agreement to assure that its terms will be enforced? Can you be confident that the settlement will not unravel because one or more of the parties has had a change of heart? These are questions that frequently concern parties who are thinking of using mediation. Fortunately, I have found as a mediator that it is not difficult to create and enforce a binding agreement if you follow a few simple rules.
Mediation: It's a Team Effort
Settling cases is seldom easy. Even the small cases, the ones that people tell me will be “simple,” can require an unexpected amount of time and effort. In order to make the job easier, I try to establish at the outset a collaborative relationship with all of the participants.
The Right Time To Mediate
So what is the right time to mediate? The answer is different in each case. The best way to find out is probably to talk to your adversary.
To Caucus Or Not To Caucus
Given the general acceptance of the caucus model many people are surprised to learn that it is not the only way to mediate. In fact there are some mediators who use caucuses only sparingly and other who do not use them at all.
What Kind Of A Mediator Do You Want?
The success or failure of a mediation often depends on who the mediator is. Before retaining a mediator you should find out as much as you can about his or her qualifications and methods. You can ask the mediator directly and you can also check with parties who have used his or her services in the past. Then evaluate the mediator in light of each of the factors discussed below to see if he or she is right for your case.
Settlement Authority: Don't Leave Home Without It
A successful mediation is one that ends the litigation through a negotiated settlement. Granted that there may be other benefits to mediation, such as exchanging information with the other side, getting input from the mediator about the strengths and weaknesses of one's case, or finding out if the case is likely to settle, but most lawyers and clients use mediation because they want an end to the litigation. Failure to reach a settlement generally leaves everyone with a sense of disappointment.