Negotiation News: Volume 4, Issue 6
Welcome back to Negotiation News. I hope everyone had a nice summer and is looking forward to all that Fall offers. We don’t seem to be able to beat the heat in LA, but with any luck we’ll finally get a break. For those of you sending children off to college (as we did), fear not – it’s hard, but you have plenty of company in saying the bittersweet goodbyes.
In this issue we are going to discuss trust in mediation: how to gain it and how to command it.
It’s Only Just a Matter of Trust
We have all been in mediation where distrust rears its ugly head. Counsel may have “client control” issues, the client may not trust the attorney to negotiate the best agreement possible, and either (or both) may not trust the mediator or may come to believe that the mediator is “working for the other side.”
So how do you deal with this?
In a recent mediation, I had plaintiffs who were dead-set on a settlement number, below which they would not budge. We had the extra hurdles of (1) friends and relatives telling them there was no way they should settle for less, and (2) a spouse holding firm to the notion that there was no way the case should be settled for less, either. I had a general idea of a range of outcomes and believed that a settlement in that range would eventually be acceptable to the both parties. But it was imperative that I establish trust with them to soften the barrier that their preconceptions were presenting.
After a morning of negotiations that were reasonably productive, the parties, counsel, and I ate lunch together and talked about whatever was on their minds – baseball, shared life experiences – anything except the case. Counsel and I both spent most of the time listening. Not only did I establish rapport with the parties, but that also helped establish a better rapport with their counsel. Over time, what the plaintiffs’ relatives said became a non-issue, and the plaintiffs’ “drop dead” number presented at the outset slowly faded away.
In another mediation, the plaintiff came in absolutely “on fire.” She had also recently given birth, and her infant was with us in the mediation. She brought her partner along to make sure that there would be two people (in addition to her counsel) advocating her position. When I first introduced myself, her partner, a tall, heavyset man in his 60’s, kept referring to himself as “Santa Claus.” When I walked back in the room after caucusing with the defense, I occasionally referred to him as “Santa” even if we were speaking substantively about the case. The initial tension in the room slowly dissipated, and we eventually obtained a favorable settlement after a half day.
In establishing trust with parties, it’s imperative to (1) listen (2) empathize and (3) relate. Sounds a bit like voir dire . . .
So the mediator and counsel can gain traction with the parties, but how can counsel best gain trust with the mediator, especially if they haven’t worked together before? It comes down to one word: Preparation.
Come in with a game plan, and have facts and law to back it up. I almost always tell the parties to “reverse engineer” their negotiations. By that, I ask them to think about an acceptable settlement range, and think about where they need to be in relation to the opposing party’s offer or demand and use that as a negotiation template. If the parties choose to exchange briefs (and I encourage them to exchange as much as they are comfortable with), each side must have command of the briefs, the facts of the case and the law (if applicable). I am always surprised by the relatively small number of briefs that contain references to similar verdicts and settlements for similar cases. While the mediator and counsel may simply ballpark the general damages in a personal injury case or other non-economic damages in other cases, it is incredibly helpful to have a recent results in comparable cases to assist the mediator and the other side.
Takeaway: In mediations in which counsel will invite contact between the mediator and the parties, it is imperative to establish traction, which leads to trust. I view this process as similar to a “voir dire” of the decision makers: finding out as much about the parties and counsel as possible, and then talking about shared interests. Just as it is crucial for the mediator to know whom he or she is working for, parties and counsel should know something about the mediator as well. Whether there is a solid attorney-client relationship or otherwise, it is important to convey a sense of working together towards the common goal of resolution. And finally: Prepare! In addition to briefs (and they can be very brief) that demonstrate command of the case, it is extremely helpful if the mediator, counsel and the parties have some information about how verdicts and settlements are trending.
- Enhanced Archives
The complete archive of each of the past issues of Negotiation News. is up and running, and will also include the links to the articles that were previously accessible by link. Simply visit my website, www.judgemediation.com and go to the “News” tab where you will see Negotiation News. If you need to look up something that was previously covered, it’s all there. I hope this will help you.
As always, when booking your mediation, please direct me to the website of your charity and I will donate part of the fees in your name.
I look forward to working with you in mediation soon.
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].