Viewing posts categorised under: Resolution-strategies


More often than not, I’ve found that settlement negotiations tend to break down for one reason: one or more parties choose to employ a negotiating strategy and/or tactic which — though not necessarily the intention — prevents the parties from reaching “the outer limits” of their dispute, i.e., the minimum dollar amount plaintiff could reasonably be expected to consider under all of the circumstances and the maximum dollar amount defendant could reasonably be expected to offer.  


In the November 2015 edition of Resolution Strategies, I shared the story of a “transformative moment in mediation,” in which a 77 year old man had taken it upon himself to forgive the young woman whose negligence had caused him fairly severe injuries. As I described it back then, plaintiff “reached out to hug her, she accepted his embrace, and the tears began to flow.” Due to a “simple act of kindness” by a “good and decent man,” that young woman’s life was transformed that day.

Two weeks ago, under strikingly similar yet decidedly different circumstances, it happened again.  


A high-school student had sued the school district after suffering injuries during football practice. The school district had filed a Motion for Summary Judgment (“the Motion”) and was certain it would prevail. Over objection, the court had “ordered” the parties to engage in mediation. Understandably, defendant was an unwilling participant in the mediation process and refused to consider making anything other than a “nuisance-value” offer while the Motion was still pending.

Rather than send the parties packing, I decided to explore whether the Motion — instead of being an impediment to resolution — might be used as the actual mechanism to achieve resolution. After all, if the Motion was heard and granted, plaintiff’s only recourse thereafter would be a costly and time-consuming appeal; if the Motion was heard and denied, defendant’s bargaining position thereafter would be severely compromised.  


I’m always surprised when an attorney resists or outright rejects my suggestion that he or she communicate directly with opposing counsel during a mediation. For reasons that escape me, many attorneys absolutely loathe the idea of talking to one another, preferring that every point, every piece of relevant information, every factual or legal argument, and every settlement demand and offer be delivered by the mediator. So, when counsel embraced my recommendation a few weeks ago that they talk to one another directly before engaging in any settlement negotiations, they scored points with me and — more importantly — with each other.  


As mediators, we perpetually strive to maintain balance. One moment, we may find ourselves balancing the need of one party to vent at length during a private caucus against the risk that the other party will grow restless and impatient. Another moment, we may find ourselves balancing a request that we “advocate” on behalf of one side against our fear that doing so may alienate the other side and result in our no longer being perceived as fair and impartial. Yet another moment, we may find ourselves balancing our commitment to confidentiality against our concern that withholding certain information will make resolution impossible. And yet another moment, we may find ourselves balancing respect for a party’s right to self-determination against our recognition that a particular negotiating strategy is likely to backfire, leading to a response that is contrary to that party’s stated objective.

All of our balancing acts, however, share one thing in common: they are designed to create an environment which will enable the parties to reach their own point of equilibrium, i.e., the point at which the potential upside and potential downside of ongoing litigation are reasonably in balance. Until the incentive to settle equals or exceeds the incentive to go to trial, resolution is unlikely.  


As they do every April, the world’s greatest golfers gathered in Augusta, Georgia last month to compete in what many consider to be the sport’s most prestigious tournament — the Masters. Virtually every one of them had a seemingly flawless and effortless swing, and most were able to hit the ball at least 300 yards with their driver. Each was also proficient with the other woods, irons, wedges and putter in their bag.

So what distinguished the legendary Tiger Woods — who, at age 43, came from two strokes back to win his 5th Masters Tournament and his 15th major championship overall, 14 years after his last win at Augusta — from the rest of the field?  


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.  


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.  


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.  


“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.  

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