Which door to choose?
It only takes 40 hours of training to become a mediator, and if you’re a judge, you get a bye. Mediators have different skill sets and varying degrees of conflict resolution training. Think about your case, your client, opposing counsel and the other side’s client before you select a mediator.
Mediator Training. The most skilled mediators I know take many hours of training on a yearly basis, join professional conflict resolution societies, attend annual conferences and speak on mediation and negotiation topics. As part of your due diligence, find out something about the mediator’s background more than that a colleague “used” them before.
Mediator skill sets. Most mediators have good people skills. Curiously enough, not all mediators have good conflict resolution skills. This is where thinking about your client and the other side’s client is critical. They are the ultimate decision makers. Would they respond better to someone who takes the time to empathetically listen to them or to someone who tells them what to do? Do you have some client control issues? Do you perceive that opposing counsel does? A mediator well-trained in conflict resolution skills will have the relational expertise and emotional capacity to work directly with your client and the clients on either side and can be invaluable in closing the deal.
Lax and Sebenius, two Harvard Business School professors who authored 3D Negotiation, suggest mediators can assist negotiators by providing assistance in any or all of the following ways:
“. . . lowering the emotional temperature, fostering more effective
communications, helping uncover less obvious interests, offering
face-saving possibilities for movement, suggesting solutions the
parties may have overlooked, structuring the process more
efficiently, reducing the risk of sharing information, and proposing
Mediation subject matter expertise. Many lawyers believe that mediators need to be steeped in subject matter expertise. Most mediators think that the mediator’s skill set and process skills are their most important expertise. If you have a patent case, you are probably going to want to work with a mediator with patent law expertise. If you have a class action, you are probably going to want to work with a mediator who is conversant with class actions. Other than those two areas, if you chose a well-trained mediator, subject matter expertise will have less impact on settlement negotiations than you imagined.
We’ve all spent weeks on trial preparation. If mediation (or other ADR) is going to resolve most cases (only 98% to 99.5% of cases go to trial in some studies), we should consider matching the disciplined approach we take to preparing for trial to mediation preparation.
As a first step, take some time to think about your last mediation. Make a list of what worked and what didn’t work. Consider these questions:
1. Did I select the right mediator for the case?
Cases are different. Mediators are different. Decide which mediator attribute is most likely to enhance client satisfaction and settle your case, e.g., subject matter competency v. creativity v. the usefulness of your client’s or the other side’s client’s feeling heard and respected.
2. Did I evaluate my BATNA (Best Alternative to a Negotiated Agreement)?
Did I evaluate the other side’s BATNA?
3. Did I accurately calculate the Zone of Possible Agreement? If not, why not?
4. Did I take full advantage of the joint session?
This is your opportunity to hear directly from and speak directly to the client on the other side.
5. Did I have an effective game plan?
Deciding whether to make the first offer, where to go next, and where you want to end up are as important as trying to analyze where the other side’s ballpark is. Bill Walsh, the legendary 49’ers coach, scripted the first 25 plays. Did you script your negotiation moves ahead of time?
6. Was I surprised by the other side’s posturing, facts or legal arguments, or was I ready for them?
7. Did I work to create value?
8. Given the negotiations and the outcome, was my client adequately prepared? Satisfied?
I recommend starting a file and writing this information down. Keep track of each mediation. What worked? What didn’t? Then review the file prior as part of your mediation preparation for your next mediation.
Here’s a proven negotiation tip that most people don’t think of, or at least don’t think of first. I think it’s not used more frequently because it’s a little counter-intuitive.
When we get stuck in conflict, whether in civil litigation mediation or divorce mediation or conflicts in the workplace, we tend to let the conflict make us pessimistic about its eventual resolution, which makes us feel more stuck, and the more we feel stuck the more we feel frustrated, and the more we feel frustrated, the more we come to disrespect, or even demonize, the other side. Once we’ve gotten to that point, about the last thing we want to do is show that we respect the other side.
Stuart Diamond, negotiation professor at The Wharton School, and author of Getting More, has studied irrationality in negotiation. He points out:
“When people are irrational, they are emotional. When they are emotional, they can’t listen. When they can’t listen, they can’t be persuaded. So your words are useless, especially those arguments intended for rational or reasonable people.”
Emotion “reduces people’s information processing ability….[E]motional people, studies show, care less about getting a deal that meets their needs than about hurting the other party.”
Diamond recommends making “emotional payments” to the other side:
“You need to tap into the other person’s emotional psyche with empathy, apologies if necessary, by valuing them and offering other things to get them to think more clearly.”
To cut down on the other side’s acting irrationally, he suggests offering:
- A statement of the other person’s value
The value of emotional payments is that it will calm down the other side, they will be able to think more clearly, and they will be better able to listen to you. Then the stage is set for you to persuade. Of course, the earlier you start showing respect for the other side, the less likely they will become irrational and that you will be facing impasse in mediation or negotation.
Emotion in negotiation is always a factor. The other party’s emotions. The other attorney’s emotions. Your client’s emotions. Your emotions. Planning for emotion should be part of your mediation preparation. We’re all human. Their emotions or our emotions can unintentionally lead to impasse in mediation.
Harvard Business School professor Michael Wheeler has been studying emotion in negotiation. The Harvard Program on Negotiation (PON) has scheduled a webinar with Professor Wheeler for May 10, 2012, entitled Steps to Understanding and Effectively Using Emotions in Negotiations.
Here’s a preview of key points from PON:
"1. Balance. Successful negotiators are calm but alert. Patient and proactive. Creative, yet firmly grounded. Maintaining those feelings and attitudes in proper proportion is just as important as mastering the substance of the negotiation.
2. Attunement. Getting in synch with counterparts is essential. If they are defensive and hostile, everyone is dragged down.
3. Influence. Emotions are contagious. When we bring anxiety to the bargaining table, others sense it. Conveying optimism is in our interest.
4. Resilience. Self-awareness is key: We need to know our own hot buttons and how to recover when others push them.
5. Satisfaction. Knowing what we want to feel at the end of negotiation helps us to get there."
I've had the pleasure of hearing Professor Wheeler speak. You can sign up for the webinar here.
(Emotion, the-elephant-in-the-room. I'm re-using the photograph. Photoshopped it myself!)
A persuasion case study from my trial files.
A young man was diagnosed with Type II juvenile diabetes in his teens. Despite countless admonitions from physicians, dieticians and nurses, he was non-compliant with his diet.
In his twenties, he did something illegal (I can’t remember what) and was jailed. In the jail, a family physician diagnosed diabetic retinopathy for the first time. Plaintiff contended that the physician committed malpractice for not diagnosing it sooner (even though plaintiff had been followed by an ophthalmologist). I represented the company that placed the physician.
The jail kept records of all the snack food that plaintiff bought at the jail’s commissary during the six months he was incarcerated. Plaintiff bought a lot: moon pies, pork rings, top ramen, Kit Kats, Hershey bars, you name it. I put the commissary records into evidence. At the suggestion of a co-defendant, I decided to show, not tell, the jury what plaintiff had bought. The argument went to plaintiff’s contributory negligence.
My closing argument was scheduled for a Monday. I sent my paralegal out to buy every single item on plaintiff’s commissary list. It took him all weekend, as he had to go to multiple stores to purchase everything on the list. The junk food was mounded on my kitchen table. I decided the jury needed to see it in a familiar container. I had an oversized, lattice-worked laundry basket. Perfect. The jury could see the junk food through the plastic lattice work and there was so much food I could mound it on the top.
During closing argument, I put the basket mounded with junk food on a table in front of the jury. (I even staggered, unintentionally, under its weight.) I was watching a young juror in the front row who was studying to be a nutritionist. This marked the first time I actually saw someone’s eyes grow as big as saucers.
I could have reminded the jury in closing to review the commissary records, which had been marked as an exhibit. Instead, I showed them what they represented.
When you negotiate, think of ways to show what you mean. It’s a persuasive way to make your point. Try it at your next mediation.
Harvard Business School professors Deepak Malhotra and Max Bazerman wrote one of my favorite negotiation books: Negotiation Genius. There are many powerful negotiation strategies in this book. They also point out seven common mistakes that negotiators make:
“1. You made the first offer when you were not in a strong position to do so.
2. You made a first offer that was not sufficiently aggressive.
3. You talked but did not listen.
4. You tried to influence the other party but did not try to learn from them.
5. You did not challenge your assumptions about the other party.
6. You miscalculated the ZOPA (zone of possible agreement) and did not re-evaluate it during the negotiation.
7. You made greater concessions than the other party did.”
Three additional mistakes I’ve seen as a mediator are:
8. You did not prepare sufficiently for the mediation, so you didn’t have all the information you needed to settle the case.
9. You did not prepare a concession strategy.
10. You let your emotions dictate your moves, so that you were reactive instead of proactive.
It’s an interesting list. The mistakes cover every phase of a negotiation, from insufficient preparation, to where to start the negotiation, to information gathering, to inflexibility, to concession strategies, to emotion (the elephant in the room). As a lawyer, I’ve made all of these mistakes at one time or another. You can improve your mediated outcomes and mediation skills by avoiding these mistakes.
What would you add to this list?
J. Anderson Little, a North Carolina mediator with 20 years of experience in civil litigation mediation, has written a terrific book on mediation called Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes.
Initially Andy introduces the reader to a typical rear-ender case. After 12 rounds of proposals, the parties settled.
“At the end, the participants signed the agreement, wrote their checks, said their good-byes, and went their separate ways. Their interaction was courteous but stiff. Although an agreement had been reached at mediation, no one was particularly happy with the settlement or the difficulty with which it was reached.”
“This was a once-in-a-lifetime experience for [plaintiff]. He would not have an opportunity to see or speak with the people on the defendant’s team again…. “
“The members of the defense team were professionals. For them, this was just one more automobile accident, one more claim, and one more negotiation.”
This captures the essence of personal injury litigation mediations. Andy argues that facilitative mediators can play a productive role in these types of “one-off” cases where it's likely the parties will not see each other again.
“In the position-based bargaining that goes on in a civil trial court mediation, the mediator’s chief aim is to help the parties overcome their reactivity, refrain from stopping prematurely in reaction to the other side’s proposals or in reaction to their own pessimism about the prospects of settlement, make thoughtful rather than reactive proposals, and continue moving through ranges until they reach their best numbers or are sure that their best numbers will not settle the case.”
Andy outlines a method to help hard bargaining lawyers or their clients get out of their own way so their case can settle.
This is not just a book for mediators. It’s a book for every lawyer involved in civil litigation mediation. Gain insights into negotiation strategies that can improve your mediated outcomes. Since less than 2% of cases go to trial, the acquisition of mediation skills can help you shine as a lawyer.
Check out the little boy’s face.
Remember when you were a little kid listening to stories? They can be mesmerizing. Even for adults, for there is a child in each of us. Somewhere.
Lawyers who try cases know that telling stories in opening statements and closing arguments is a compelling and persuasive way to influence juries. As Annette Simons in The Story Factor puts it, when you are trying to influence a group, giving them more facts is just piling on more facts. Jurors likely have more facts than they can process well. She suggests:
“They don’t need more facts. They need help finding their wisdom. . . . A storywill help them figure out what all the facts mean.”
As the best trial lawyers know, when you let jurors access their own wisdom to reach their own conclusions, they are more likely to own that opinion than when you tell them what their opinion should be.
Why not use the same process during mediation? At times, mediations digress into a tug-of-war between the egos of opposing counsel and/or opposing parties. Storytelling has the ability of making a point without setting off an ego war. Ease them out of their point of view.
Again from Simmons:
“You don’t have to convince people that they are wrong to influence them. . . . Letyour listener’s ego sleep. Concentrate instead on providing a visceral experience ofa new story where new choices make more sense. Don’t back someone into a corner. . . .Lead their conscious and subconscious minds on a tour of a different point of view. . . .Intrigue and activate their imagination.”
And finally, she asks, “Which is more important to you—being right or influencing others?”
If you are interested in the power of storytelling, check out The Story Factor. Its subtitle is “Inspiration, Influence and Persuasion through the Art of Storytelling.
Whether you know in advance there will be a joint session or not, preparing for one just makes good sense. The mediation process is flexible. Joint sessions might take place initially, episodically, or near the end of a mediation. As part of your mediation preparation, consider strategizing for the joint session. It's a mediation skill you'll want to acquire.
Early in my mediation practice, I met a lawyer at a social function and we started talking about mediation. He said, in horror, “You don’t do those joint sessions, do you? I hate them.” I’ve thought about this for a long time, and the best answer I have is that this lawyer had never been educated as to what can be accomplished at a joint session and probably had no negotiation training, and therefore, he was uncomfortable being in a joint session.
I see joint sessions as opportunity. This is the only time during the pendency of a lawsuit that you get to talk directly to the other side in a non-adversarial setting. It is also the only time that you get to hear directly from the other side. Take advantage of it! This is a mediation skill as opposed to a litigation skill.
I’m a proponent of listening. As an advocate, listening can be a condition precedent to persuasion. Stephen Covey has advocated this for years: “First seek to understand; then to be understood.” So consider listening first, asking curious questions and keeping an open mind. The other side may reveal the solution for a settlement.
Stuart Diamond, negotiation professor at the Wharton School of Business, and author of Getting More, advocates considering the pictures in the other side’s heads. What do they want? Can you get them what they want while getting your client what he wants? If you want to settle the case, the other side’s picture or view is important to you for this simple reason: they have what you want.
When it’s your turn to speak, speak directly to the other side, not to their attorney. What could you say, in lay terms, which would convince a layperson of your view? Story, metaphors and analogies can be very helpful here.
Your clients may be all fired up to continue the fight, even at the mediation. Let them know that the warrior they hired to represent them is prepared to do battle at trial, but that mediation requires a different skill set. Studies show that antagonistic, adversarial tactics are rarely productive in a mediation. Mediation skills include collegiality, cordiality and collaboration, which are more likely to be productive.
Walk your clients through the likely sequence of events that will occur. Let them know your expectation of their conduct is that they will be civil and cordial. Tell them how you plan to proceed. Remind them that patience is a virtue, especially during a mediation.
Lawyers, in particular, are really, really good at spotting issues, marshaling facts and constructing arguments. But, asking good questions to resolve a dispute? Not so much.
Wharton School negotiation professor and author of Getting More, Stuart Diamond, notes, “[T]he single biggest cause of communication failure is misperception. Further, he says:
“Often the things you hold so firmly and deeply are invisible to the other party—they don’t exist….So to persuade people with different perceptions, you must start with the notion that your ‘facts’—your ideas, thoughts and perceptions—are invisible to them. What you see so clearly, the other party may not see at all.”
It stands to reason that if you are holding on to your ideas and they are invisible to the other side, that they are holding on to their ideas and those are probably invisible to you. What to do? Ask questions.
Diamond notes that one of the best problem solvers in TV history, Columbo, would ask, “Help me out here. I’m confused…” Try it yourself. As Diamond says, “Isn’t it smarter to find out what they are thinking before making a decision about what to do?”
If you are at an impasse in mediation, you will want to find out what the other side is perceiving. Too often, we assume we know. Too often, we don’t know. So ask.
Asking questions has several salutary effects:
- It shows that you are interested in them and sets the table for persuasion
- It helps you understand what Diamond calls “the pictures in their heads”
- It doesn’t commit you to anything
- It keeps the momentum for negotiation and resolution going
And here’s a bonus: asking questions can elicit information you didn’t already have that you can use to settle the case.