Category: _Regular Post

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.

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.

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.

All the necessary parties had gathered for an in-person mediation. But one side said we could not proceed.

“I have just been presented with an expert’s report I have never seen before. I have to depose this expert and probably get my own expert. Then opposing counsel will want to depose my expert. We can’t talk about settlement for months.” As you might expect, a bit of pandemonium ensued.

“Let’s assume this”, I said. “You will secure an expert at some expense. Your expert will say essentially the opposite of what is stated in this report. In deposition, both experts will staunchly defend their opinions. How about if we try to settle today with those assumptions and without the added expense and delay? We’re all here now. If we are unsuccessful in resolving the matter, you can move ahead as you see fit at that time.” Everyone agreed to proceed with the mediation.

Initially, the parties had tunnel vision. Given the procedural status, they fell back on the tactics they had always followed. Our discussion exposed the choice to waste the time, expense, and effort that had gone into convening the mediation versus an unlikely improvement in the parties’ bargaining positions plus added expense and delay for both sides. Considering those choices, the best path was to try for resolution.

After a few hours, the parties agreed to settle.

Of course you want to take notes during mediation. You want to record new information as it emerges. You need to keep close track of demands and offers. But participants’ note taking could take away from the value of this mediation.

Don’t Get Distracted
Currently, most mediations happen over Zoom or a similar app. How many devices are you working at once? Tapping your notes on the same device that is hosting the video could be difficult.

You can be so busy trying to run multiple apps at once that you are paying more attention to the technology than to the negotiation. You can lose your train of thought. You might accidentally close the internet connection and stop participating. This can appear disrespectful or possibly incompetent to others, including your client and the mediator.

Using multiple screens can help. So can using separate devices for the meeting and your notes. If you do take notes electronically, make sure your keyboard use is silent.

Or maybe you should just use paper.

I take notes on a legal pad. Because I need to keep clear who said what, I divide the page vertically. I note everything the claimant puts forth on the left, everything from the respondent on the right.

Note that the area opposite each side’s communications is blank. This preserves the sequence of information disclosures. The image gives you an idea how this happens. You can see that Plaintiff went first. Only one side is putting forth information at a time; the empty space on the other side is blank to reflect that.

Appropriately, participants change their positions during mediation. My notes let me easily see what disclosure elicited what response.

Getting to Settlement
Some negotiation participants are so busy thinking of the next thing they want to say, they aren’t listening to others in the conversation. Good negotiators take advantage of mediation to elicit as much relevant information as possible.

In joint sessions, particularly when mediation occurs in person, visible notetaking on a device might distract or even intimidate an unsophisticated party. Certainly, an attorney can counsel their client to overcome any such issues: “I’m talking notes, too. Notetaking is good. It shows the note taker approaches the negotiation seriously and wants to create an accurate record.”

Whether you take notes electronically or on paper, if you need to note something immediately, don’t be afraid to reflect (loop back) what you have just heard and then take a break. Say, “Give me a second to write down this information.” You need to be listening, not making a note, as the speaker continues.

At every stage in conflict resolution, parties face an array of choices, but they don’t always recognize them.

Can we offer the opposing party more ways to get to an acceptable conclusion? Think of ways to enhance the proposed monetary exchange with other items of value. That might be a resignation or an apology. Parties might agree to a justifiable re-characterization of payment. A claimant might avoid an unfavorable tax consequence or build a retirement account. In some circumstances, a recharacterization could make the defendant’s payment tax-deductible when it otherwise would not have been.

Can we find options which would bring us to resolution more efficiently? That could range from an agreement to cooperate in the discovery process to participation in early neutral evaluation

Does it make sense to spend more money which may or may not produce a more favorable outcome? Before ramping up confrontation, prepare a budget for the proposed steps. How likely is it that an improved result will justify the attendant expense and delay?

This image created with AI

Create an Architecture of Choices
People want to have choices. Your job is to manage the negotiation to present options. Choice architecture nudges people toward choices that are in their best interest. Some parties may be inexperienced or poorly informed. A choice architect will make it easier for those parties to make a good choice.When parties have the ability to choose from alternatives which have been fashioned to meet their needs, they are most likely to take one of those options. Regardless of which side of a conflict you are on, you need to consider how the choices can fulfill all parties’ interests. (Interests are what people actually need, typically not the negotiating position they initially presented.)You are more likely to get to resolution if you can present your offer as a group of choices. While that could be as simple as itemizing exactly what will happen if the parties don’t reach resolution, an array of more positive choices would be more attractive.

Some parties are so focused on their own position that they are unable to see the range of choices available to each party. As mediator, my job often includes pointing out those choices and asking parties to consider and balance them.

All successful mediations are alike; each unsuccessful mediation is unsuccessful in its own way.

OK, maybe you are more familiar with the actual first sentence of Leo Tolstoy’s 1878 novel Anna Karenina:
“All happy families are alike; each unhappy family is unhappy in its own way.”

The Anna Karenina Principle
This mantra is so vital to our understanding of psychology that it led to a theory called “The Anna Karenina Principle.” The principle holds that though no one factor can guarantee success, many factors can lead to failure.Anyone who has participated in a bunch of mediations can attest to the relevance of the principle to settlement negotiations. In all successful mediated settlements, parties prepare for and embrace the negotiation process. They take full advantage of the mediator’s role as sounding board, experienced knowledge source, and pacifying influence. In unsuccessful mediations, one of the participants has gone off on their own path.Unhappy In Their Own Way
Some participants come to mediation without having taken the time to thoroughly research the facts and applicable law. They lack an understanding of the foundation for the negotiation to succeed.Another aspect of this dynamic is the party who refuses to consider how the opposing negotiators view these same elements. Their preparation ignored the steelman arguments.No participant should be surprised by how mediation works. It is the advocate’s job to educate the clients. Thoroughly educating the client includes a discussion of a range of potential reasonable outcomes. Yes, there may be surprises, but an attorney can tutor a client to expect the unexpected.

Conversely, the client who is surprised by the mediation process or who hears important information for the first time, though that information has long been in the file, is likely to balk at even the most generous settlement terms. The resulting lack of client control can derail any mediation.

Everyone Wants To Be Happy
In Anna Karenina, characters seek personal happiness, sometimes sacrificing an important desire in favor of one the seeker wants more. Sadly, when passions are out of control, the result can be tragic.

In mediation, a party may have to surrender a deal point they previously considered necessary in order to achieve the best settlement. Every mediation participant wants to leave feeling happy. Getting to settlement avoids anxiety, expense, delay and uncertainty about the outcome. Settlement is better than throwing yourself in front of the moving train of an impending trial.