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A Recipe for Mediation

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A Recipe for Mediation

Source: The Recorder
Date: December 10, 2003
Mediators spend a lot of time observing successful and not-so-successful negotiators. Attorneys, insurance claims managers and representatives, business executives, human resource managers and "Chief Negotiators" of industry, labor and bargaining cooperatives all have their own styles and methods in approaching mediation. Here's what works and what doesn't work.

An important and early distinction needs to be made between "negotiation" and "advocacy." Advocates belong in the courtroom or in the arbitration forum. The job of an advocate is to persuade the judge, jury, arbitrator or other neutral fact-finder of the correctness of their position and the defects in their opponent's. Negotiation, on the other hand, involves persuading the decision-makers on the other side of the table as to the merits of your point of view and the deficiencies in their case. The goal at mediation is to achieve what you want and to convince the other side that such an outcome is a "win" for them, too.

The Negotiation Puzzle Pieces
A mediation is nothing more than an "assisted" negotiation. Three elements influence the outcome at mediation: the attorney, the client (e.g., plaintiff, claims representative, business executive) and the attorney's written brief. The quality and interplay of these three components will determine the degree of success, mediocrity or failure of each client's case.

There is a saying that any plaintiff's attorney can turn a $5 million case into a $3 million case; it is the exceptional plaintiff's attorney that converts the $5 million case into an $8 million settlement. On the flip side, any defense attorney can tell a client to pay a substantial sum in exchange for a Release and Dismissal of the case; it is the exceptional defense negotiator who delivers the client a waiver of costs, confidentiality clause and letter of resignation in a "wobbler" employment claim by successfully demonstrating to plaintiff and plaintiff's counsel that pursuing the case would not be in their best interests.

The exceptional negotiator achieves exceptional results. Poor negotiation skills are manifest when the plaintiff's attorney leaves substantial money "on the table" or when the defense counsel "gives away the store."

What you need to do to succeed is provide your opponent everything needed to intelligently evaluate your case, plus add equal doses of credibility and trustworthiness, so that the other side realizes that your client is entitled to what he is asking and that resolution now is in their best interest.

But how do you accomplish this?

The Brief
Effective preparation starts with the brief and, whether plaintiff or defense, put everything you have into it. Recognize that the purpose of the brief, while it is being addressed to the mediator, is written to persuade the other side. The brief may be the first opportunity that you have to penetrate beyond opposing counsel to reach the actual decision-maker, whether it be the plaintiff or the person holding the defendant's purse strings. A sloppy brief (replete with typos and dangling participles), submitted late and with argument unsupported by law or evidence, will not only be unpersuasive, but also sends the wrong signal from the start.

It is in the brief that the attorney sets forth the summary of the facts, application of the law and exposition of damages. It is in the exhibits that the attorney's statements derive their credibility and persuasive force.

For example:
• Support statements of the law not only with legal citations, but also with highlighted copies of applicable jury instructions, appellate decisions or, if "negligence per se" is being asserted, applicable statutes, ordinances or regulations.

• Discussion of injuries and surgical procedures should be supported graphically with anatomical charts, medical illustrations reflecting the various steps of the surgery, reverse positive X-ray photographs depicting location of residual hardware and footnotes or parenthetical definitions of medical or technical terminology.

• Statements attributable to witnesses should be supported by highlighted deposition testimony excerpts, written statements, declarations under penalty of perjury, police or other official reports.

• Allegations as to what the future holds -- e.g., future surgery in a personal injury case or loss of profits in a patent infringement case -- must be supported by an expert's report and, incidentally, include the expert's curriculum vitae for the reader's ready reference;

• Photographs, diagrams and illustrations can miraculously convert eight paragraphs of complicated text into the reader's mind's eye of your view of the case.

• Present objective sources to establish case value, e.g., reported verdicts and settlements of similar fact patterns in similar jurisdictions, articles discussing similar cases or, preferably, verdicts or articles addressing your (or your firm's) trial accomplishments. (An attorney's personal opinion as to the value of a case carries little weight.)

Exhibits are limited only by your imagination. No statement should be made without some document in support of it. The thoughtful negotiator will send two copies of the brief in a timely manner to opposing counsel: the extra one to be forwarded without delay -- and with no risk of poorly copied exhibits -- to the principal/decision-maker.

If issues are raised in the brief that you receive from opposing counsel, consider addressing them prior to the mediation in a supplemental brief again, with supporting documents.

Once the written brief is complete and received well in advance of the mediation, that attorney's stature as a prepared and well-reasoned negotiator will have been established. Now that component No. 1 has been locked in, elements two and three come into play: the attorney and the client.

The Attorney
The first 10 minutes of a mediation are crucial in terms of attitudes expressed -- verbally and nonverbally -- and the tone that is set for the balance of the day. Attorneys who "smile when they talk," explore a common ground for "small talk" unrelated to the mediation (kids, sports, travel, diets, current events) and exhibit cooperative and trustworthy signals, quickly promote a "We can get this thing done" atmosphere. On the other hand, counsel who arrive at the mediation with an entirely different position than last communicated (e.g., a plaintiffs attorney who had previously demanded $150,000 now demands $330,000), or present last-minute documents or expert reports, will offend their opponents and seriously diminish any chance for success.

A successful negotiator once said that he perceives his job as follows: determine what the other side needs to document their file or to answer their questions, then provide that information in a timely manner "… so that each of the tumblers falls into place and then the lock will open."

There is an expression: "Honey goes further than vinegar." Attorneys who adopt offensive, argumentative, bombastic and/or arrogant styles at mediation do not serve their clients well. Attacking your opponent, their witnesses or representatives generally does not endear you to the other side, nor does it either foster an exchange of information or promote a desire to do business with you. On the other hand, the negotiator who concedes the weaknesses of his case and acknowledges the strengths of his opponent's case, generates immediate respect and credibility with the by-product of encouraging equivalent behavior from the other side.

From the following phrases, see if you can tell which are designed to promote discussion, exchange of information and collaboration toward case resolution:

• I'll concede that
• You're an idiot
• You're right
• Your client is lying
• You've done a good job on that
• You haven't done your homework
• I don't disagree
• There is clear liability/comparative
• That is a weakness in my case
• You're here in bad faith
• I may not win on that point
• You just don't get it

At the mediation's joint session, the attorney's opening comments should be those of a forceful advocate and should address the most important facts and issues of the case. The use of diagrams, PowerPoint presentations, select portions of video depositions, photo enlargements and expert witnesses (in person, by videoconferencing or speaker phone) are all worthwhile tactics to facilitate the other side's understanding of the critical points in your case, and to demonstrate your professional abilities and financial commitment to your client.

As for "smoking guns," whether to reveal them is a matter of strategy that often depends on the smoking gun-toter's perception of the other side's credibility, willingness to share information and whether the gap in negotiation is sufficiently narrow to warrant release of key surprise evidence. Good negotiators know how and when to divulge them.

Another subject that warrants comment is the plaintiff's first demand and the defendant's first offer. A technique guaranteed to engender hostility on the other side is to make a demand (or an offer) that bears no reasonable relationship to the value of the case. Certainly it is reasonable for a plaintiff to start higher than she expects to end up and for a defendant to start low to allow room for negotiations. But the unsupportable, unprincipled "pie in the sky" opening salvo does nothing but put a damper on communications and impede the other side's willingness to exchange information.

Counsel should consider:
1. For the plaintiff, make the highest demand that can reasonably be supported by the evidence.
2. For the defendant, do not open with a ridiculously low offer in response to what you perceive to be a ridiculously high plaintiff's opening demand; rather, negotiate against the settlement value of the case. A credible number communicates to the other side that you are there to do business. A reasonable, good faith first offer, properly packaged, will generally engender a like-kind response.

The Client
The third component in the equation is the plaintiff or defense representative. The attorney should spend a good deal of time preparing that individual for the mediation session so that they know what to expect and what to say and what not to say.

What a party does is often as important as what the party says, so instructing your client on the basics of body language and non-verbal behavior is every bit as important as the old standby to "stop talking if I kick you under the table." (For example, a client who says, "I want to go to trial," while his body language -- shaking his head "no" -- reveals his real desire to avoid trial at all costs.)

It is often said that "plaintiff is Exhibit A" in a case. That can also be said for the defense witness and/or representative. Therefore, the conduct of the attorney's client/representative at the mediation and their nonverbal as well as verbal messages, can have an enormous impact on the outcome of the negotiations. Although there are a few rare circumstances where an attorney may want to put a sock in her client's mouth, the client who has been well prepared in advance of the mediation can definitely add value to that side's case.

It frustrates the mediator when a plaintiff's attorney won't let the client speak in a joint session, and then in the private caucus the client's warmth, honesty, sincerity and genuine sense of loss shine through. Regrettably, that spontaneity has now been lost on the other side.

The plaintiff and his/her attorney are a team, and perceived as "one" by the folks on the other side of the table. Any deficiency of one attaches to the other. The overdramatized limp, the exaggerated wage loss, the feigned neck rubbing and the disingenuous claim, especially when combined with expressions of hostility and personal vindictiveness, will quickly turn off the folks with the money. On the other hand, a warm handshake coupled with a touch of stoicism and genuine likeability on the part of the plaintiff can maximize settlement value at the mediation.

Likewise, the defense adjuster who listens intently, asks pertinent questions, exhibits compassion and treats the opposing attorney and client with respect will generate more favorable results than an attack-mode piranha who marginalizes and demeans the plaintiff and his counsel.

The Outcome
Good negotiators are good listeners who know how to be creative in resolving cases and flexible when confronted with unexpected developments. It is not uncommon for new information to surface at a mediation -- sometimes helpful, sometimes devastating -- and I often marvel at how various attorneys deal with it: There are whiners and there are lemonade-makers. Some maintain poker faces, while others break into a sweat. The best way to avoid embarrassment and meltdown is through meticulous preparation. Know your case, know your opponent's case and know your opponent and their counsel. (Jury verdicts searches, Martindale-Hubbell and Google are just a few sources.)

With the almost audible clicks of all the tumblers falling into place, your client will be well served and you can take pride in having achieved the best possible negotiated outcome.

Jerry Spolter , Esq., a San Francisco-based mediator with JAMS, has served as a neutral in more than 2,000 disputes covering a range of issues. He is a member of the American Board of Trial Advocates and has been widely recognized by professional organizations and top legal publications as one of California's outstanding mediators. He thanks Stephanie Krympotic, Stephen Murphy and James Butler for their contributions to this article. Jerry Spolter may be reached at

Reprinted with permission from the December 10, 2003 issue of The Reporter © 2004 NLP IP Company. All rights reserved. Further duplication is prohibited. For more information, contact Paula Ryplewski at (415) 749-5410.