A Fresno Mediator’s Observations On Effective Negotiations Skills and Techniques In A Mediation: Roadblocks to Resolution
Attorneys ask this all the time:
Why is my case not settling?
It could be after the first mediation, or the third, or after the MSC. Some cases that should settle, just won't. To determine WHY a case is not settling, a creative attorney must evaluate two main factors:
Do the parties have Roadblocks to Resolution?
Do the attorneys have Roadblocks to Resolution (this will be in Part 2 of this series)?
WHY a case is not settling occurs because your client is not ready to settle. Clients are in litigation because they cannot resolve their case on their own. They have Roadblocks to Resolution, and litigation only compounds the problem.
Plaintiffs and Defendants have "roadblocks" to settlement that pre-date the mediation and even the lawsuit. That is why they are in litigation. So, especially at the beginning of a case, clients are not pre-disposed to settle.
To settle a case, your client's roadblocks must be addressed. The more Roadblocks to Resolution you can address before mediation, the better chance of settling you have at the mediation. I have dealt with many of the Roadblocks during mediations, which is fine, but it makes the process longer and more perilous.
Is Your Client Ready To Settle? -- Only When His Roadblocks to Resolution are addressed.
Some clients do not want an early settlement. They want to fight. Other clients want the case settled yesterday. Most have no idea why their case is not settling. If you ask your client why their case is not settling, they will likely shrug their shoulders. In fact, most clients do not know why their case is not settling. The clients (and sometimes the attorneys) do not even know what their Roadblocks to Resolutions are.
Generally speaking, your clients' roadblocks fall into one of the below categories:
The Client's Timing Roadblocks
The Client's Emotional Roadblocks
1. The client's timing roadblocks can dictate why your case is not settling
Clients do not understand, what I call, Litigation Time. Everything in a lawsuit takes 2 1/2 times longer than in real life. For example, at a deposition, an attorney will say he has ten minutes of questions, but will end a half hour later.
Client's timing roadblocks hinder settlement. Client thinks the other side should cave and this lawsuit should have been over 5 months ago. This causes frustration with the client and one of two things happens: (a) They become hostile towards the other side or the process; (b) or they give up.
When the case is taking longer than expected, fees are mounting, the settlement they hoped for as a Plaintiff is not coming, they become irritable, hostile towards the other side and all litigation. They don't want to mediate. They want the trial, which in their minds, means conclusion. Of course, as attorneys know that is not true and not fast.
Clients will sometimes give up on settling. They figure if the case was going to settle, then it would have. They have mentally checked out on mediation or early resolution, and prepared themselves for trial. These Roadblocks to Resolution can keep parties from fully engaging in settlement talks or mediation. They are ready "to just try the case."
These Timing Roadblocks can be addressed early in a case by explaining the general trajectory of a lawsuit, both procedurally and time-wise. Just because you filed three Demurrers does not mean the case will not settle. That's a procedural fight, not substantive, for example.
Creative attorneys explain this process, and then the clients have a better idea of the timing issues and such timing concerns are not Roadblocks.
As a mediator, I have spent many hours addressing these worries and vexations over timing, and how this case will never settle because the other side file a Motion for Summary Judgement, and it's too late to settle. I walk the litigants through the natural course of litigation, how his case is normal, and even though his expectations of the case's timetable is not being met, his case is on the usual course and can be settled despite the filing date was three years ago. I try to set aside these timing roadblocks, which are usually impediments to settlement. Once a client knows the timing issues, he is more likely to settle, and thus your case can settle.
2. Client's emotional state
We don't like the "E" word. We are attorneys who have no heart, jaded by years of litigation. All true.
When attorneys see cases, our decision factors are limited the:
Facts
Law
Applicability of law to the facts.
This is about it. Of course, you are a creative attorney and may have a few more factors, but let's be realistic, not too many more.
However, a client has many factors in determining if he is ready to settle. Here are a few I have witnessed while being a mediator:
History with the other side
The facts (as he sees them)
Interlopers, either familial, friends, or other influencers
Expectations
Vague understanding of the law
Fear of settling
Pride
Other emotional outcome
Settlement Fatigue
These emotional roadblocks will derail or delay any settlement, and that case that has been to three mediations and one MSC likely has been delayed because of one or a combination of these Emotional Roadblocks.
1. History with the other side
One of the biggest Roadblocks to Resolution is the parties' history together. In many cases, such as breach of contract, business cases, fiduciary duty, etc., the parties have a prior connection, which has deteriorated. They have history, which is no longer pleasant. There is usually a long standing history of alleged deceit, disappointment, distaste, or even anger, which led them "to get an attorney." Even in a car accident, the Plaintiff is angry at the Defendant for hitting him, and the Defendant is irked that Plaintiff "is trying to get rich from the accident," even assuming they were cordial at the scene.
You may have been in litigation for 12 months, but your client has been living with this emotionally draining dispute for a lot longer. If your client is already exasperated with the other side, litigation has only magnified their disdain for one and another.
To push a case to settlement, this History between the clients must be addressed. It could be as simple as explaining why the Plaintiff filed suit because the Doctor's office was threatening to sue for non-payment of medical bills, or to the other extreme, have the parties actually sit in a room and hash out their two-year old grievances. I have seen both.
If your case is not settling and it should, reflect on the parties' history and see if you can address some of the concerns and animosity. Speak with the client about how life will look after litigation, and the fact that they get to conclude dealing with the other side.
If you are uncomfortable doing so, pull your mediator aside and let him inquire and perhaps explain the other's side's point of view. Regardless, the parties' history can be a significant Roadblock to Resolution.
2. Facts as he/she sees them
Your client knows the facts "from a certain point of view." Early in litigation, the clients do not know all the facts, are not aware of the information the other side has, or possesses all the documents. Based on his limited information, your client has solidified a fact pattern upon which he will not waver. These facts may be incomplete and even erroneous, which you uncovered in discovery.
I see this a lot at mediations, and this is the most time consuming part of a mediation. I have spent hours "educating" clients (and counsel) on the "other facts"- information they did not have or attributed value to. Once the parties are working with the same facts, cases that would never settle tend to resolve.
Next time, you have a case that is not settling, re-evaluate if your client understands and appreciates all the facts, not just his preliminary understanding and realize these "Facts" will be presented to the jury, and if he does give them weight, the jury surely will.
3. Interlopers
We all have had clients who were not "calling the shots." The wife, brother in law school, bullying business partner--all of whom usually are not even a party but was affecting the case.
I mediated a case where the parties where trying to rescind a real estate deal for agriculture land. The party to the case wanted to settle, but his brother-- who was not a party-- had financed the deal. The party could not settle because his brother was pressuring him. The only deciding factor to settle was not the facts, law, or even the amount. It was what the brother would think. That was it.
As an attorney, you need to recognize this and plan for it. This familial factor highly affects settlement. In my case, during the mediation we got the brother on the phone who gave his approval, and the case settled soon thereafter.
If your case is not settling, look for interlopers and deal with them. Either include them, exclude them, or minimize them. There are numerous ways to do this, including, bringing in the interloper, have the party rely on someone else (such as a spouse), or cut them out of the case completely. It depends, of course, but your case may not be settling because of someone else.
4. Expectations
Client's expectations are formed long before they see you. Every Plaintiff thinks they have a seven-digit-I-am-going-to-retire case and every defendant expects the court "to throw out this case" next week. These expectations are formed from television, newspaper headlines, tabloid news channels, that uncle that settled his motorcycle accident case, or the nephew who is trying to pass the bar.
Clients may be roadblocking the settlement because they have unrealistic expectations, which are from outside influences. You have worked through the risk and possible outcomes, but when they go home, their brother is telling them they shouldn't accept anything less than "two million on this case."
I have sat through mediations and take a lot of time trying to unravel these preconceptions. You have fought the good fight, but if your case is not settling, you may need to put your counselor hat on prior to the mediation. If you set expectations early in the case, you can get ahead of these expectations.
If your client is not listening to you or feels you are "not fighting for them," let the mediator know. We handle this all the time.
Your client's expectations can be a significant Roadblock to resolution, and the only way to dispel their misconceptions is with direct, thoughtful guidance from the expert they hired to advise (and advocate) for them.
5. Vague understanding of the law
All clients think they are right and the law justly backs them up. Most are wrong at least to some degree. They don't know the law. They think they do, but they do not. They what they think "is fair." Those two things don't always coincide. Regardless, when your client has a moderate understanding of the law, you can educate them. If your case is not settling, have a frank discussion about the applicable law and the pros and cons of legal issues of his case. This could help settle the case that will not settle.
6. Fears
You will be surprised how much fear of settlement affects a case.
Why would a client fear settling?
As attorneys we settle cases all the time. It means the case is over. Plaintiffs may get paid. The defendants no longer have the risk or cost of litigation.
However, many litigants fear settling. It triggers a lot of emotions for them. The fear of settlement arises in several ways:
Fear of the unknown of what will happen after the "fight" is over. They have been fighting for years. This is all they know.
Fear of not getting "the best deal." They fear they were taken advantage of or they can't explain to others why they concluded with "getting their day in court." No matter what happens someone will say (or the clients will think someone will say), "they could have gotten more" or "they could have paid less." They fear buyer's remorse and it is sometimes easier to just let the jury tell them what will happen, so they are devoid of responsibility.
Fear what others will say about them settling. They may be mocked for not risking it or for "caving."
If your client is appearing timid, flip-flopping, or uncertain, which is causing the case not to settle, explore his fears. Try some open ended questions, like, "How do you see things after you settle this case at the mediation?" A simple question, which might just give a little insight to his fears.
Once you know which fears are blocking his consent to a deal, you can alleviate his fears, which are likely unsupported and irrational, and help settle that case.
If you feel uncomfortable doing it, give the mediator a head's up you think this is what is happening, and a skilled mediator can gently probe and address those fears. Otherwise, you may on the precipice of a deal, and have your client (again) say he is "just not sure."
7. Pride
A client's pride is a settlement killer. This Roadblock to Resolution can stop a good settlement cold. A client's pride that he has been wronged or the other side must be punished will hijack the best of settlements and usually comes from a place of emotional turmoil, rather than an objective analysis of the law and facts.
Pride usually affects large-ego clients who are used to getting what they want in business, in their profession, or in their personal life. The other side must yield or nothing else.
If your case is not settling, look for your client's pride interfering. If so, tread with caution because I have seen clients turn on their attorneys for not being aggressive enough. Just let your mediator know, and a skilled mediator can soothe and cajole a prideful litigant if we have the forewarning and time. If your client's pride is getting in the way, make sure you book a full day and let the mediator handle the client's ego and if all goes well, you can have a settlement that keeps his pride intact but allows for a mutually beneficial resolution of your case.
8. Other emotional baggage
Every client has different emotional baggage. Clients are emotional creatures and any number of emotional trapping can affect a settlement. They can range from anger to apathy. If your case is not settling, examine your client's other emotional baggage.
Once I was mediating a case, where a party would not settle even though his attorney begged him to do so because he felt like he was letting down others in his small ethnic community.
The earlier you can locate and then address the underlying emotional baggage, the faster you can get a case back on track towards settlement. If you do not deal with the issue beforehand, we will have to deal with it during the mediation, when we have less time and resources to handle such emotional triggers.
9. Settlement fatigue
Many times, clients have given up on settling the case. They are resigned to a trial, and have handed the reigns to their counsel. I have seen this in mediations, where the clients have given up on settlement. They have been through two days of mediations, a telephonic mediation, and a MSC. They see settlement as a distant dream. So, when you have your last ditch mediation, they say things like, "This case will never settle" or "we might as well try this case."
To combat this, as an attorney you should remind the client of the benefits of settling, such as controlling their own fate, mitigating risk, and resolving on their terms--not twelve strangers who are angry they are missing work to hear their dispute. As a mediator, I soothe these fatigues and give hope towards settlement. Hope is the best remedy to settlement fatigue, and can resurrect a doomed-to-trial case into a thankfully-this-case-settled feeling.
Summary of how to identify and handle your clients' Roadblocks to Resolution
WHY a case is not settling can turn on several factors. If your case is not settling, you need to look at your client's roadblocks to see if they are hampering a deal. The main ones to look for are as follows:
History with the other side: If so, speak with the client about the relationship with the other side, or have the mediator do it. Focus on life after litigation, which should help the client to focus on the future, rather than the bitter past.
The facts (as he/she sees them): Review the facts you have learned in litigation with the client in the context of seeing the other side's perspective, rather than just the "lies the other side" believes. An objective recitation of the facts can help your client see the bigger picture (like the jury will)
Interlopers: Identify the interlopers and address them head on, by including them, minimizing them, or distancing them from the case.
Client's expectations: Have a heart-to-heart conversation about what the client expects from this case and the harsh realities of litigation.
Vague understanding of the law: Discuss the law and provide case examples similar to their action showing how the law works in their case.
Client's fears: Inquire about what they are expecting to happen if the case settles, and address their fears.
Client's pride: Have the mediator handle the prideful and emotional client but give him a lot of time.
Other emotional baggage: Ask open ended questions inquiring if there is something else holding up a deal.
Settlement fatigue: Give your client hope the parties can settle and advise them the benefits of a settlement versus leaving it to a jury to decide their fate.
To settle a case, you (and the mediator) need to address the Roadblocks to Resolution, and the less you have the greater likelihood you have of settling that case that just will not settle.
Attorneys' Roadblocks to Resolution
This will be address in Part 2 of this series.
WHAT NEXT?
I am a mediator who mediates in Fresno and throughout California and beyond. I am available for all your mediations and can help you through these Roadblocks to Resolution. You can reach me to schedule a mediation at:
PEEL | GARCIA
3585 W. Beechwood Ave., Suite 101
Fresno, California 93711
559-431-1300
--Troy
P.S.-Get a FREE printable PDF of my
TOP 5 NEGOTIATION TIPS
(throw it in your briefcase to read while that mediator is in the other room and impress him when it's your turn to negotiate)
**This publication is provided as an educational service and is not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.