Negotiation News: Volume 3, Issue 2
Happy St. Patrick’s Day. We are getting out of the California “winter,” and spring is very much in the air. In this issue, I’m offering a few tips on dealing with difficult people in mediation. Also, I will be moderating a panel discussion on April 1 at the Courtyard Marriott in Sherman Oaks entitled “Resolving Cases Without The Court’s ADR Program — What Do Lawyers Do Now?” , focusing on civil cases in Los Angeles County. (see link to the left, and more below) We have a wonderful panel, and you will not want to miss it.
Difficult People: Tips on How to Deal With Them
People can be “difficult” in mediation for a whole host of reasons, and “difficulty” can manifest itself in different ways. We can all try to speculate about the reasons (a fairly unproductive exercise). But these reasons may include one or more of the following:
- Wanting to impress a client by appearing “tough”
- Trying to intimidate an opponent (or the mediator!)
- Purely strategic reasons of “not budging,” and making an opponent come to their range of settlement
- Style and reputation
- Psychological or personality issues/family or personal difficulties
- Using mediation as a pseudo-discovery session
- A prelude to an unexpressed “here’s what is really bothering me about this case”
and many more.
“Difficulty” can be manifested in many ways – bluster, stoicism, or even politeness.
So what to do if your opponent is “difficult?”
First – Prepare. Know your case backwards and forwards. Have your facts, the law, and the reasons for your evaluation brief sent to the mediator with as much as possible exchanged in advance with opposing counsel. When it is available, recent verdicts and settlements in similar cases in the same or similar jurisdictions provide strong evidence that your evaluated range is appropriate.
Second – Stay focused. I have found that bluster (either by the client, the lawyer or both) is often the easiest emotion to deal with, since it takes so much energy to remain upset or furious, and frankly, most people just get tired. But for a mediator, it’s important to look beyond the style and try and get to the substance of what is being communicated. For one dealing with a difficult opponent, it’s good strategy to stay focused while in caucus, and to maintain focus and equanimity if and when a joint session becomes necessary.
Whatever the reasons, there are always impediments to resolution. It is incumbent upon the mediator to identify them, and for counsel and their client to address the specific impediments in detail when they arise. With difficult people, they are often more beholden to their position than those who are parties to an “easier” negotiation, so it often takes considerable time get to meaningful negotiations to settle the case.
Prepare. Stay focused. Be patient. These are the keys to success in any mediation, but these techniques are especially effective when dealing with difficult opponents.
- Reduced Fees For Cases With Maximum Claimed Damages Under $50,000.00
I offer reduced fees for cases where the amount in controversy is under $50,000.00. Under the former LASC ADR program, cases in which the claimed damages were $50,000.00 or less were eligible for court-ordered or party-pay mediation. In an effort to continue to serve the parties who have cases with claimed damages under $50,000.00 with one plaintiff and one defendant, my fees will be reduced for the duration of the mediation, with no increase after three (3) hours . My hourly rate on cases in which the claimed damages in dispute are above $50,000.00 or with more than two parties remains the same. Please feel free to contact me to discuss at 818-616-8500 or [email protected].
Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. He can be reached via telephone at 818-616-8500, at www.judgemediation.com or via email at [email protected].