In Part I of this article, I discussed part of a chapter in Dwight Golann’s book, “Mediating Legal Disputes,” in which Golann addresses the importance of an advocate’s use of a mediator to “manage and structure the flow of information” and “influence the bargaining process.” Part II of this article will outline Golann’s thoughts regarding the tactics an advocate can use to help the mediator break impasse, and concurrently attain a favorable settlement “closure” to the bargaining process.
1. Bargain with the mediator about impasse-breaking techniques that will be most effective in increasing your client’s share of the settlement pie.
A mediator has a long list of methods to help parties get past impasse ranging from less intrusive methods of getting positional bargaining re-started (e.g., “what if” or hypothetical bargaining) to intrusive methods such as a mediator’s proposal for settlement. As an advocate, you have the ability to ask the mediator to avoid specific tactics, or to influence the mediator about the specific tactics that are proposed or used. For example if the mediator wants to use hypothetical bargaining (“what if I could get the other side to go to $150,000″), you can suggest a favorable number or probe the mediator about how likely it is that the other side will agree to move. If the mediator employs range bargaining, you can bargain with him or her about the endpoints to be used with the underlying knowledge that settlement is likely to occur near the midpoint of the range (“if they will drop to $400,000, we will go up to $200,000, but not if they stay at $500,000″).
Take control and actively intervene in mediator proposals for settlement if you decide that it is in your client’s best interest to entertain one. Take the initiative to negotiate with the mediator and define what your client is willing to do in order to settle (“if you make a proposal in the range of $200,000, I will recommend it to my client”). If you know that your mediator will continue negotiating even if his or her proposal is rejected, you may want to consider allowing the mediator to make a proposal that you intend to reject, and then counter with a new offer so as to force the other side to make a mental adjustment toward your position.
Listing the extensive array of tactics you can employ as an advocate in mediation is beyond the scope of this article. In general, however, always consider what option is likely to achieve the best results for your client at any given point in the process, and press the mediator to use it. Moreover, always consider how your actions, and reactions to any technique, will affect bargaining later in the process.
2. Use the mediator to educate an unrealistic opponent or client.
Ask the mediator to give an evaluation if you think your opponent or your client is not being realistic. This helps to manage your client’s expectations and at the same time preserve your client’s confidence in your loyalty and zealousness, particularly when “bad news” about your client’s case needs to be delivered. Experienced mediators will allow you to use them as a scapegoat so that you can avoid client criticism (“once the mediator estimated damages at $250,000, it was impossible to get the defense to go any higher”).
Your request for a mediator’s evaluation needs to be tempered with some caution. Ensure that impasse is being caused by a disagreement about legal merits or some related obstacle an evaluation can address. If there is some other impediment to resolution such as an emotional or psychological issue, an evaluation will not help. If you are not confident that an evaluation will be helpful, ask to speak with the mediator privately about it before it is given.
It may be helpful to avoid a “global” evaluation of the entire case, and instead focus on a specific issue that could re-start negotiations. Carefully consider what issue or issues you want evaluated. Focus on what issue is causing impasse, and avoid having an evaluation performed regarding an issue that you may have raised for reasons other than its legal merit (such as an argument you proffered to humor your client).
Finally, tell the mediator what you want. Identify the emphasis and level of specificity you think your client needs – greater or lesser detail, more or less explanation, or an evaluation that is diplomatic or more direct and hard hitting. To get the best evaluation possible, direct and guide the mediator to key evidence, highlight important language in documents, and where possible, have him or her meet or talk to key witnesses.
3. Continue to use the mediator’s power even if mediation initially fails.
If your case does not settle during the initial mediation session but you believe that your client will benefit from an additional session, prod the mediator to follow up and try to re-start the negotiation process. Even if settlement is not possible, consider using the mediator to work out an efficient way to proceed with litigation. You may wish to consider using the mediator as an arbitrator to render a binding or non-binding decision, to help the parties agree on a process to select a different arbitrator from a panel of neutrals, or to help the parties agree on another method by which to adjudicate the dispute in an expeditious manner. Or perhaps the mediator can help the parties to negotiate a discovery plan or some other procedural element of the litigation. The list of possibilities is as long as your imagination and creativity.
As noted in Part I of this article, by pro-actively engaging the mediator, you can harness the mediator’s power to achieve a better negotiated resolution for your client!
I’m Dave Doto, and this is my Opening Statement. – August 31, 2011
Law Offices of David M. Doto
