Viewing posts categorised under: Resolution-strategies

HOCUS FOCUS

A visit to the Magic Castle five years ago led me to realize that magicians and mediators share something in common — in order to be effective, both must be skilled at redirecting one’s focus.

Plaintiffs and defendants generally arrive at mediation with a singular — and identical — focus, i.e., to obtain the best possible outcome. Of course, their definitions of “best possible outcome” are usually antithetical to one another, and therein lies the rub.  

DIFFICULTY ADJUSTING

On paper, the morning and afternoon mediations were barely distinguishable. Both were personal injury actions with clear liability and both appeared to have settlement values in the same range. Despite their similarities, the afternoon mediation resulted in a settlement, but the morning did not. Engaging in a bit of “post-mediation analysis,” it struck me that the reason the parties had reached a resolution in one but not the other was because counsel for plaintiff in the afternoon mediation had been willing to adjust his negotiating strategy to make defendant’s decision more difficult.  

OPEN & SHUT

When I went to sleep on my birthday, it was open; when I woke up the next morning, it was shut. And it remained shut for the next 34 days . . .

There are valuable lessons to be learned about negotiating strategy and tactics by analyzing the negotiations that surrounded the recent government shutdown, especially the exchange of letters between Speaker Pelosi and President Trump concerning the State of the Union address.  

TIMING IS EVERYTHING

“The right answer at the wrong time is the wrong answer.”

I don’t know who was first to say it, but the above maxim has become the mediator’s mantra. When it comes to almost every aspect of the mediation process, timing is everything – and that begins with determining the best time to engage in mediation.

Logically speaking, the sooner the parties submit a dispute to mediation, the better for everyone. Once positions have hardened as a result of the passage of time and/or the cost of litigation, fashioning a compromise that will be acceptable to all concerned may become more difficult. Indeed, some have argued — persuasively — that “pre-litigation” mediation should be mandatory.

However, mediating too soon can also make it more difficult to resolve a dispute in some cases. When one of the parties is not yet “ready,” mediating can sometimes do more harm than good.  

GONE, BUT NOT FORGOTTEN

You’ve purchased two tickets to see the Lakers game, at a cost of $550. Just before you head out, it begins to pour. Knowing Los Angeles traffic as you do, you realize it could easily take two hours or more to get downtown, which means you are likely to miss the first half and might not arrive until the final 15-20 minutes of the game.

Alternatively. you can stay home and watch the whole game from the comfort of your family room, on your 60 inch flat screen TV. If you hadn’t already purchased the tickets, you’d opt to stay home. But you spent $550 on the tickets, so you hit the road.

Rational? Hardly. The money has been spent whether you go to the game or not, so why should your decision be different just because you already purchased the tickets? The answer lies in the fact that your hard-earned money is gone, but not forgotten. You believe you will feel better having spent the $550 on 15 minutes than you will having spent it on nothing.  

INSTANT MESSAGING

Last week, it happened again. In response to an offer deemed insulting, counsel for plaintiff said:

“I want to send them a message . . . “

Far too often, one side or the other instructs me to transmit a demand or offer which is intended to “send a message” to the other side. Before I will agree to do so, I always ask how the requesting party anticipates the other side will respond and whether such a tactic will promote resolution. Usually, the requesting party concedes “the message” is not likely to be well received and reluctantly admits that sending it might undermine whatever progress had already been made.  

CONFIRMATION BIAS

On September 6, 1916, the 64th Congress of the United States passed legislation declaring that the Supreme Court shall hold one term annually, “commencing on the first Monday in October.” Today, for the second time in the past three years, the Court begins its term with less than its full complement of nine justices because the Senate has not yet completed the confirmation process concerning the nomination of Judge Brett Kavanaugh to fill the vacancy created by the retirement of Justice Anthony Kennedy.

Last Friday, after hearing from Dr. Christine Blasey Ford and Judge Kavanaugh the day before, the Senate Judiciary Committee completed its confirmation hearing and referred the nomination of Judge Kavanaugh to the full Senate, pending completion of a further investigation by the FBI. Ironically, the confirmation hearing provided a case study in “confirmation bias” — the tendency to seek and give greater weight to information which supports one’s existing beliefs and theories, while ignoring or undervaluing information which tends to refute those same beliefs and theories. “Confirmation bias” also includes the tendency to interpret new information in ways which support, rather than refute, one’s existing beliefs or theories.  

LABOR PAINS

In June of 1894, amidst a deepening economic crisis, railroad employees staged a strike against the Pullman Palace Car Company to protest wage cuts and the firing of union representatives. Within days, members of the American Railway Union joined the “Pullman Strike” nationwide. When the U.S. government was asked to intervene, President Grover Cleveland dispatched federal troops and — after much rioting and bloodshed, including 30 deaths — the strike ended. Just six days later, fearing further conflict and hoping for a reconciliation with organized labor, Congress unanimously — ah, the good old days! — passed legislation which declared the first Monday in September to be “Labor Day.”  

MISSION: IMPASSEBLE

I’ve been a fan of Mission: Impossible — first the television series, including its remake in the ’80s, and now the movie franchise starring and produced by Tom Cruise — since the day it first aired on September 17, 1966. With “Mission: Impossible — Fallout” having opened this past weekend, what better time to revisit and update the August 2015 edition of Resolution Strategies . . .

“Good morning, Mr. Siegal:  

DECLARATION OF INDEPENDENCE

As a mediator, I’ve discovered a truth that wasn’t really self-evident during my years as a litigator. Over the past ten years, I’ve repeatedly observed plaintiffs and defendants allow their negotiating strategy to be dictated by the other side. If one side presents a demand or offer deemed unreasonable, the other invariably counters with an offer or demand intending it to be equally unreasonable, inevitably leading to a series of tit-for-tat moves that make resolution more difficult. To prevent this scenario, consider declaring your independence from “reactive” negotiation.  

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