Teddy Snyder

Author: Teddy Snyder

  • Do You Trust Your Mediator? 3 Ways To Judge

    Settlement requires compromise. The mediator must have everyone’s trust to facilitate the process of each participant letting go of something they viewed as crucial. Here are three measures to use when choosing your mediator.

    Motive
    Does the mediator have any motive other than bringing the parties to resolution? Does anything in the way this mediator was nominated suggest the person cannot be impartial?

    Traits Needed To Bring The Parties To Resolution
    In negotiation, parties make themselves somewhat vulnerable to their mediator. Does the mediator have the kindness, patience, and background to understand the emotional side of the dynamic?

    I was once in a mediation where the mediator walked in and immediately announced, “This case has a value of $X.” This kind of arrogance, impatience, and rigidity does not instill trust and is unlikely to bring the parties to resolution.

    Understanding
    Does the mediator demonstrate an understanding of the parties’ wants and needs? Just saying what you want may not move the negotiation ahead. Sometimes I have to ask, “What do you need?” That can be harder to define—verbally and emotionally.
    As a mediator, I am omni-partial; I am on everyone’s side. Working together, we will get to resolution.

  • Settle and Sue – Don’t Let It Happen To You

    As the attorneys and adjuster hammered out the settlement agreement in the main conference room, I passed the smaller room and saw the plaintiff weeping. I’ve also seen some very angry defendants. I have had to take steps to assure that parties didn’t feel ramrodded into settlement.

    These are extreme examples of a situation which could lead to a second lawsuit, this time for legal malpractice, a phenomenon called “Settle and Sue.”

    Be Realistic
    At intake, some attorneys will provide prospects a rosy picture of their likely outcome to induce them to sign a retainer agreement. (I know. You’re shocked, right?) Then, as time passes and expenses mount, that favorable outcome no longer seems so inevitable.

    At this point, clients may seek new counsel. But they might not be successful. That could be due to a large lien for advanced costs or because other attorneys are wary of working with what could be the client from hell. If the client has already gone through two attorneys, the third lawyer on the case is likely to see a history of problems.

    Even when attorneys strive for transparency at intake, there are usually twists betwixt intake and mediation.

    Keep the Client Informed
    And that’s why it’s so important to let the client know what is happening in a timely fashion and how it affects the evaluation of the case. Even if the professional’s evaluation of the case is unchanged, it’s important to inform the client of major events such as receipt of discovery or hearings.

    Will the client actually read these status reports? Perhaps not. But a well-drafted report will explain what is happening in easily understandable language. When the client expresses dismay at first learning about adverse information during mediation, it helps to have copies of the status reports readily available.

    Unreasonable Client Demands
    Clients get information from many mass media sources. For example, if a TV show or Google says important information can be extracted from the opponent’s cell phone, a client may demand that the attorney hire an expert to do just that. These types of demands may be cost-prohibitive or simply not going to be helpful for this situation. Even when clients are told that the procedure they want will cost, say, $100,000, they may grumble now, but later claim that the attorney’s refusal to comply with a “simple request” is what forced them to agree to a terrible settlement. Documenting the substance and outcome of these conversations is critical.

    Prepare for Settlement
    I’m amazed at the mediation participants who show up with what seems like willful ignorance of the case. Some parties cast aspersions on their opponents with little consideration of the merits. Participants need to pay attention to others’ input, not brush it off. Some participants in remote mediation seems to be barely there; yet, they are being asked to make important decisions.

    Getting these folks to pay attention at mediation can be a challenge for me and their representatives. If an attorney does manage to wrangle a settlement, participants with buyer’s remorse could later threaten a legal malpractice action.

    How the Mediator Helps
    As mediator, at the outset I always tell participants that nothing can happen without their consent. When it’s time to document a settlement, settlement terms should be carefully reviewed with the parties to make sure there is no misunderstanding. Parties should not feel coerced to enter what they view as an unjust settlement.

    Sometimes attorneys ask me to deliver bad news. They are afraid to tell the client what the client refuses to hear. My job is to guide the parties and their representatives to recognize the best path forward to settlement. Good preparation and mediation participation can avert the possibility of a “settle and sue” action.

  • Has the Philosophy of Litigation Management Changed?

    For decades, I have encouraged parties to evaluate early and often with a view to closing cases to minimize the expenditure of time, money, and stress. So I was recently surprised by the published contrary view of a litigation management expert.
    “Litigation Is Not Like Wine”
    Litigation is not like wine—it doesn’t get better with age, goes the old saying. In most cases, the longer the dispute drags on, the more it costs to end it. I have seen many cases where a defendant had an opportunity to end a case early and years later ended up paying multiples of that early value. Plaintiffs can incur more expenses without increasing the value of the case.Litigation is stressful for parties, even those who are representing organizations. Claimants who are frustrated by a lack of progress in their case may ruminate and discover additional reasons for compensation. Some of these can increase the final settlement amount.

    Injury claimants usually continue to treat. This increases the likelihood of compensable side effects, such as from medication or due to mental illness. Not only does the patient undergo additional medical procedures, but the cost of those procedures rises. A study by the Institute for Legal Reform found that tort costs grew at an annual rate faster than inflation, averaging 7.1 percent between 2016 and 2022.

    Is Your Opponent As Fierce as a Bear?

    The expert, a speaker at a major litigation management conference I had spoken at many times myself, advised defense counsel and claims professionals, “Don’t poke the sleeping bear.” The message was that if the plaintiff wasn’t contacting the defense, the defense shouldn’t do anything to contact them: “If you haven’t heard anything from plaintiff’s lawyer, why do that?”

    The expression “don’t poke the bear” is an admonition against angering or offending someone, particularly if that person is more powerful than you. Let’s first note that intentionally angering or offending your opponent is never a good litigation strategy. It’s also an ethical violation of rules that call for civility.

    But let’s assume that this speaker was referring to innocuous communications. Yes, some claims professionals and counsel on both sides of a conflict don’t pay attention to their pending cases. Then they scramble to prepare for mandatory events. Sometimes I see these folks at mediation, and it is obvious they haven’t prepared at all. Let’s call them the teddy bears. They’re not fierce.

    But what if that silence masks the activities of a fierce bear who is gathering evidence and research to take a big bite out of your case? If you aren’t regularly talking about the possibility of settlement, you may not learn the strengths and weaknesses of both of your cases until late in the game. That can impair your ability to properly prepare. Your opponent may have already battened down the stories of witnesses you didn’t know about, may have already retained the foremost expert, perhaps regarding a condition or circumstance you had not discovered. In one of my mediations, claimant’s counsel disclosed he had arranged for a famous grizzly to handle the trial if the case didn’t settle.

    Because lawyers are required to transmit any offers of settlement to their clients, even when an attorney has been dilatory, the client may be anxious to end the dispute. Ongoing communications about settlement may entice a litigation-weary party.

    Which Philosophy?
    The answer to “Why do that?” is that regular communication amongst parties helps you scope out what those other folks are (or are not) doing. Regular communication creates a path to a fair, early settlement.

    Obviously, every case has unique circumstances and participants which dictate litigation management choices. However, a deliberate choice to always go radio-silent could damage your client’s result.

  • Pay Attention to Your Gut Feeling

    Intuition is the brain function that lets you jump from one piece of information to another. It’s why you may get your best case management ideas in the shower or even in a dream. It’s why you have that gnawing feeling that something is not quite fitting together the way it should to make sense. A decade ago, I wrote a book Personal Injury Case Management: What’s My Case Worth? In Chapter 3, Gut Instinct, I wrote: Experienced lawyers and insurance claim personnel use their accumulated knowledge, their gut instinct, every day in evaluating personal injury cases. In general, the more experienced the evaluator, the better the evaluation.

    The Difference Between a Litigation Plan and Lockstep Litigation
    When your brain makes that jump or gives you that gnawing feeling, the best thing to do is to formalize a plan to resolve the issue. Create a table with the issue on the left and what you need to do to move ahead on the right. That might be an on-the-ground investigation, a subpoena, limited new discovery, writing a letter to your opponent, or scheduling a mediation.

    The one thing that is unlikely to provide the missing piece of the puzzle is to keep sending out the same template discovery and asking the same questions you ask in every case. When your intuition sends you a signal, don’t ignore it.

    Intuition at Mediation
    One of the benefits of mediation is that it brings together the real players. Even in a virtual mediation, you can observe body language and speech mannerisms. You can pick up emotions and motivation. Sometimes, a party is looking for revenge, but more often they are looking for validation of their own story.

    You can also sense if your opponent is not fully prepared. Impressing your opponent with your mastery of the case can drive them to settlement.

    As a mediator, I have often sensed whether people were really ready to settle. I was able to dig out information that was irrelevant to the case, but was the actual settlement driver. For example, one claimant had a sick spouse and wanted to settle to better care for the spouse. The statutory confidentiality of the mediation caucus lets me ask the questions my intuition prompts and which could not be asked in discovery.

    Pay Attention To Your Gut

    Intuition is informed perception, not blind speculation. Use your knowledge, your research and your experience to guide your settlement negotiation. Rely on the mediator’s intuition, too.

  • Examine Your Process to Settle Cases Faster

    The real goal of case management is to economically conclude the case with the best outcome you could realistically expect. Yet, litigators spend a lot of time spinning their wheels on activities that don’t yield significant progress toward that goal.
    Look at Your Process
    Chances are you follow a protocol. That’s how you were taught to manage a case. That’s the way you and your firm have always done it.What Do the Stars Do Differently?
    Is there someone in your organization who closes cases quickly? What is that person doing differently? This star performer may not even realize they have a different approach.  With permission, spend some time looking through some of the star’s files. Maybe sit in on a hearing, mediation, or meeting.

    Then review one of your own recent cases. How well do you think you managed it on a scale of 1-10? What would it take for it to be have gone better? Did all your activity provide real value to the client? The answer isn’t in what others do; look for answers in the actions you control.

    Pull out a closed file where things went really well. What was different? Did you periodically evaluate the case and timely communicate that evaluation to your client? Did you cultivate a collegial relationship with your opponent who can help you work through information—or view that person as an enemy?

    Create a Miracle
    Find the main obstacle to getting to your goal. Then focus your attention on resolving that one thing. In his book Reset: How To Change What’s Not Working, Dan Heath calls that the Leverage Point. A little bit of effort focused on fixing the Leverage Point will yield disproportionate returns.

    If a miracle happened tomorrow to resolve the bulk of obstacles to quick resolution of your cases, what would that look like? That’s your Leverage Point.

    Prioritize resolving that issue. If your first concerted efforts aren’t working, move on to a different solution.

  • HOW INERTIA, DELAYS AND DEADLINES AFFECT YOUR SETTLEMENT

    Parties are often surprised by how long it takes to resolve claims. It doesn’t have to be this way. While some causes are beyond participants’ control, parties can proactively take control of the claim to hasten resolution.
    The Groundhog Effect
    Groundhogs can dig long tunnels without coming up to see where they are. Unfortunately, a common litigation technique is similar. Lawyers send out the same written discovery in the same order followed by witness depositions followed by expert depositions. Maybe after all that, they think about settlement. It makes sense to repeatedly stick your head out of the tunnel to look around and see where you are. You might see a more direct way to get to settlement without continuing to dig.  Yes, a way to settlement, because that’s how more than 90% of all claims conclude.

    Courts Enable Delay
    The legal system, by its nature, is slow. Courts have limited resources, and scheduling issues can force even simple cases to take years. Discovery disputes, motions, and waiting for rulings all contribute to delays. Even when parties are ready to settle, they often wait for a court event, thereby slowing down the process. Sometimes something happens in the interim that damages the prospect of settlement. The longer a case drags on, the harder it can become to keep up the momentum needed for settlement discussions. On the other hand, mediation can be promptly scheduled as soon as all the necessary participants agree.The Effect of Court Deadlines
    Court deadlines can seem like an obstacle, but they often act as a catalyst for settlement. Deadlines—whether for motions, discovery, or trial—create pressure that can push parties to finally engage in serious negotiations. Knowing that a trial date is looming or that the court will impose consequences for missing deadlines often forces parties to weigh the risks of continued litigation more critically. When faced with the prospect of imminent summary judgment or trial, parties are more likely to compromise.How Mediation Helps
    Mediation can be an invaluable tool to overcome these obstacles. A skilled mediator can help break the inertia by encouraging both sides to step outside their entrenched positions and view the dispute from different angles. Mediation creates a structured environment where parties can focus solely on resolution rather than an adversarial setting. The mediation defines a window for settlement discussions. It brings the parties together for the express purpose of finally resolving the conflict.

  • MAGIC WORDS TO SUCCEED IN MEDIATION

    I recently read Magic Words: What To Say to Get Your Way by Johan Berger. The book does not specifically target legal disputes. Here are some suggestions based on my interpretation of some of his conclusions.

    “You’re a Problem Solver”
    Berger says using a verb to urge someone to do something is not as effective as flattering them with a noun. He tells how a teacher gets children to cooperate by telling them to be a helper rather than to help. It turns out that the verb implies that the action will be limited, and this is not a great motivator. Describing someone with a noun, however, implies that this is a person’s positive, permanent characteristic.

    Urging your negotiating opponent to solve a problem may not be as effective as saying, “I know you’re a problem solver.”

    Use the Same Language As Your Listener
    I joke that I speak several languages: Lawyer, Insurance, and English. Lawyers and claims people have their own jargon. So do corporate bureaucrats.

    Much of the back and forth between professionals goes over the head of others who may be at the mediation table. Talk about fixing rather than resolving the situation. Be specific. When parties do not understand what is being negotiated on their behalf, it can be a recipe for disaster when the proposed settlement blows up

    Use Emotion
    Berger says focusing on emotion can sell an idea more than relying on facts. Mediation participants sometimes cling to their version of the facts, even when that stubbornness results in the disproportionate expenditure of time, money, and stress. Sometimes it’s better to talk about the emotional relief a settlement can bring—even when the dispute on its face is between companies.

    Show You’re Listening
    Negotiation lessons always talk about active listening. Berger, too, emphasizes the importance of making someone feel heard. To do that, demonstrate that you were paying attention to what was said. Respond with enough specificity to show you understood the other person’s point. Responses like “That’s interesting” don’t do that. Repeat or paraphrase portions of what you heard.

    Mediation is the Place

    Berger envisions pathways for a higher level of communication. Mediation provides the setting for a better exchange of information than occurs in the daily hurly-burly of processing conflict.

  • The Importance of Note Taking

    Before you engage in any negotiation, you need to prepare by understanding the issues both from your point of view and your opponent’s. It’s not enough to have a general idea. You need to spend some time on this and record how you will address these issues.
    Too many negotiators forget to pay attention to that agenda once the negotiation commences. They don’t listen to the other side’s information. Confirmation bias may lead them to not pay full attention. This can lead to missing important nuances which would otherwise be pivotal in settling the case.
    Take Notes
    If you are creating notes to document a discussion, you have to be listening. While  the mediator caucuses with another group, you will have an opportunity to review your notes. You might see a reference that needs to be followed up. Use the mediator to extract as much information as possible at the mediation. She can convey and resolve questions that could not be resolved in discovery.

    If the case does not settle at that mediation, an accurate record of the negotiation will help you move forward strategically so you are in the best possible position for the next mediation session.

  • HOW NEGOTIATION IS LIKE ART FORGERY

    A big interest of mine is art theft and art forgery. Experts estimate that at least 20-50% of the art in the world’s major art museums and on the commercial art market is fake. How could this be?

    The Value of Evidence
    Three types of evidence support or debunk the authenticity of art:
    -Forensics: scientific testing to prove the age of an object or if a work was created using materials which did not yet exist at the time the work was supposedly created
    -Provenance: the provable history of ownership of an object
    -Connoisseurship: expert analysis of the style of a work, looking at details like brushstroke.

    It is this last category which is the stickiest and the most instructive. Experts can render opposing opinions.

    That’s My Story and I’m Sticking To It
    When an art collector falls in love with a work, they may be willing to ignore or rationalize evidence that conflicts with their idea of the work’s creator. They will insist on the work’s authenticity. One collector paid seventeen million dollars for a work supposedly created by Jackson Pollock. One problem: the last name in the artist’s signature was misspelled.

     

    At the other extreme, some experts refuse to modify their opinion to accept a work’s authenticity in the face of overwhelming evidence. The BBC investigative television show Fake or Fortune confirmed the provenance and forensics of a painting supposedly created by Claude Monet. That’s the picture above. Eminent art experts examined the painting and the evidence and concluded that, yes, Monet was the artist.

    The Paris-based Wildenstein Institute was the definitive worldwide authority on what works belong in Monet’s oeuvre. However, the Wildenstein refused to recognize the work as genuine on the ground that they believed the style of this painting did not match Monet’s other works. The British owner of the painting sued to force Wildenstein to include the work in its catalogue raisonné of Monet’s works, but the French court declined to intervene. After several unrelated scandals, the Wildenstein Institute is no longer operating.

    Confirmation Bias

    A well-known obstacle to meaningful negotiation is confirmation bias, the willingness to only accept information which reinforces a person’s already held beliefs. Whether the issue is liability, damages, or the authenticity of an artwork, the refusal to consider all of the evidence and adjust one’s position to account for it gets in the way of an accurate assessment of the circumstances.