Negotiation News: Volume 7, Issue 1
In this month, I offer a few thoughts on problem solving as an approach in litigation and mediation. This article is updated from a previous article that appeared in the December 2014 edition of Negotiation News. I hope you find it helpful.
Taking the Problem-Solving Approach to Resolving Disputes
When I was trying cases, there was always a sense of heading into battle, being armed with facts, arguments, law, methods of presentation and (most enjoyably), cross examination. It’s literally a form of combat, the adversarial process, the end result of which we entrust to the members of our respective communities or to the judiciary. One way or another, the trier of fact returns with a result that, notwithstanding the post-trial or appellate processes, ends the dispute.
I attended a seminar a few years ago at which a legendary trial lawyer was speaking. He had been through battles over many years against the largest corporations in the world and had obtained hundreds of substantial jury verdicts against them.
Nevertheless, he began his talk with “I am a problem-solver.” While he may also be referred to as a “courtroom warrior,” “a fighter for the little guy against corporate America,” or any other similar moniker one could think of, I found this to be an interesting way of looking at what he does.
Seeing litigation not only through the prism of “battle” but from this broader perspective, cases in litigation are simply problems to be solved at all stages, from pre-litigation and motion practice to mediation, or ultimately by a judge or jury. Maintaining one’s control of a case is one way to solve the problem; releasing that control and handing it over to a judge or jury is another.
Using a baseball analogy: in the 1970s, Sadaharu Oh, the all-time home run slugger for the Yomiuri Giants in Japan, was asked about his approach to opposing pitchers. He replied that he didn’t view pitchers necessarily as opponents or those seeking to get him out; rather he saw pitchers as players who, with each pitch, offered him an opportunity to hit the ball. Thus, each pitch (and Oh saw tens, if not hundreds, of thousands of them over his career) presented a new and different chance.
In mediation, the disclosure of positions, interests, and facts generally runs the gamut from presenting a mediation notebook replete with a full summary of evidence and supporting exhibits to submitting fully confidential briefs. While each case is different, I encourage the parties to send as much information to the other side as possible well in advance of the mediation. Whether mediation involves a relatively open exchange of information between the parties, or a measured one in which parties are reluctant to disclose potential trial positions, every piece of information exchanged presents an opportunity for all sides to understand each other and work toward resolution. Each “pitch” presents a new and different chance.
The takeaway: Take a step back and look at litigation at every phase not only as an adversarial event, but as an opportunity to create a solution. Every new piece of information that is disclosed in discovery, then analyzed, argued and negotiated over is valuable in driving the case toward resolution. Don’t miss out on the opportunity to disclose information to the other side (if warranted) and especially, don’t miss out on the opportunity to listen. If we are all in the business of problem-solving, there simply is no better way.
I look forward to working with you again and helping you to resolve your cases and disputes. Please feel free to call me at 818-616-8500 or 818-616-8500, or email me should you have any questions or comments.
All the best, and I look forward to working with you 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].