A Mediator’s Observations On Effective Negotiations Skills and Techniques In A Mediation: Roadblocks to Resolution
Even if a client is ready to settle, there is another significant roadblock that must be overcome:
The Attorneys' Roadblocks to Resolution.
WHY a case is not settling can occur because counsel is not ready to settle. As attorneys, we think we are above the case--an impartial guide and advocate of the case. However, sit in Law & Motion for a day and hear attorneys argue, bicker, insult, attack, and assassinate the character of each other over a response to Form Interrogatory, 17.1, and you will see attorneys are not impartial and above the-emotional trappings of a case.
As a mediator, I have seen many reasons unrelated to the facts, law, and the parties that prevent a case from settling. When you are looking at WHY that garden-variety case you have is not settling look to the Attorneys' Roadblocks To Settlement. It might be the other side or even possibly yourself that are blocking a settlement and answer these four questions to see WHY your case is not settling:
Is the case ready to settle on a substantive level?
Is the case ready to settle on a financial level?
Is the case ready to settle on an Interpersonal level?
Is the case ready to settle on a logistical level?
Are You Ready To Settle On A Substantive Level?
1. Is there a true lack of substantive issues in the case?
You need a good understanding of the law and the facts before you can mediate a case. The law should not be difficult, unless you are unfamiliar with it or there is a unique twist. Either way, crack out the Witkins and get studying.
I rarely see the law, or an understanding of it, hang up a settlement. The greatest roadblock will be the facts. We have our client's "version of the events", which are, at best, limited and many time skewed. The client's version of the events can create a Roadblock to Resolution, so that is why you conduct discovery. Your case might not be settling because you lack any facts on the case. If so, that's an easy fix-- send discovery and set some depos. However, there is a pitfall here that many attorneys fall into that prevents a case from settling.
2. You do not need to every fact before you mediate, just the important, relevant ones.
If your case is not settling, look to see if you (or the other counsel) are impeding the settlement because you "need more information." I hear this all the time. We need more discovery. We need to depose this random employee who signed some report in Illinois. We need to know... We need to know... We need to know everything before we can make an offer.
As attorneys, we want ALL the information. I agree-- for trial ALL the facts is absolutely necessary. For mediations, however, you do not need ALL the verified evidence and facts. You only need to relevant information to allow you to evaluate the risk.
A mediation is an effort to find the crossroads of risk, desire to conclude a case, and the reasonably expected results at trial, with a dash of a healthy-fear-of-what-a-jury-will-do.
To mediate, you only need enough information to know the other's side version of the facts and the law, and the facts that support your case. If you spend all your time and client's money to obtain testimony on every nuance of every witness's testimony before you mediate, you may be setting yourself up for failure because your case's finances are upside down. (See below)
At the mediation, we think we will shatter the other side with all "the facts," but the other side doesn't care about the facts good to your case or they devalue them. They usually are not filing dismissals based on it. There are no judicial officers you need to persuade. You have the other side--and they disagree (and will disagree) with everything you say. The facts are important--of course. However, you do not need to have every single fact, statement, interrogatory, or deposition to mediate a case.
Your case is ready to mediate when you have just enough discovery to know the other's side version of the "facts" and a good understanding of how your client will testify as to the events.
On the other hand, I have seen cases not settle because there is a dearth of facts. This occurs when you have limited facts of the case. You cannot go in blind to a mediation, even if pressed by the Court or the other side or your client.
You cannot settle, and you will not settle a case, until you have a good understanding of the facts. Too many times counsel is pressured into a mediation for extrinsic reasons beyond their control and the case does not settle. For example, if there is a stay in the case, such an order can continually cause a case not to settle, If you do not, kick out the mediation. Otherwise, you will waste time and wonder why the case did not settle.
3. Your case might not be settling because everyone is waiting for that mythical piece of evidence
Even if you think you know all the relevant facts, many attorneys are reluctant to settle because they feel they are missing something. Counsel fantasizes of uncovering the "Smoking Gun"---that piece of evidence they imagine exists will turn the tide of the case. Although this mythical evidence likely does not exist, the fear of missing it compels many attorneys not to "pull the trigger" on a deal.
They are waiting for it.
They hope the next deposition will undercover it. When it does not, perhaps this subpoena will find it.
They search. They interrogate. They refuse to settle until the have it.
This search for the Smoking Gun has hampered more than one case to settle. Don't let your search for the mythical piece of evidence prevent your client from settling a case that should have settled two mediations ago.
If your case is not settling, look at the substantive factors that could be a roadblock to resolution:
A true lack of all the relevant and necessary facts
An unreasonable desire to know every single detail before settling; or
A fear of missing the mythical dispositive fact.
If your case is not settling, see if any of the above are hampering you, or the other side, and ask yourself-- if it should be hampering a settlement.
Is the Case Ready To Settle On A Financial Level?
I have seen so many cases not settled because of poor management of the case's finances.
Every case has a financial component. For example, a personal injury case from the Plaintiffs' perspective must consider the amount paid by experts and attorneys' contingency rate shifting depending on the posture of the case. Both factors can affect the Plaintiffs' Net recovery. If Plaintiffs spent so much money on experts the case may not be settling because of the "sunken costs".
Clearly the best choice is to avoid getting a case upside down with costs. Sometimes you cannot, but if you sense a case is getting expensive, this is a good time to hit the brakes and look to mediate the case.
Cases are easier to settle before the case, "gets upside down on expenses." Once a party has substantial costs, the parties will have a difficult time resolving the case because those costs need to be recouped. So many times, an attorney will wait too long to mediate and the case cannot (or is very difficult) to resolve because too much money has been spent in expert costs, attorneys' fees, etc.
So if your case is not settling look to see if your case is financially upside down. If so, a hard analysis of the financials must be discussed either at the mediation or with the client. The hard truth may follow:
1. All sunken costs are not recoverable
A case might not be settling because of the mistaken belief that all sunken costs are recoverable. This is a hard pill for many litigants but even if you win at trial, a client may not ever recover the $200,000 in expert costs. So, if you settled early, this risk and the expenses can be avoided.
When you are looking to see WHY your case is not settling, look to sunken costs as a cause. Then, you can find creative ways to hopefully avoid (or at least address) this Roadblock to Resolution. Possible solutions I have seen in mediation to a case where the litigation costs are hampering settlement include:
Address the case's finances with a frank and honest discussion with the client
Renegotiating the expert's fees
Delaying paying the experts until after the case
Renegotiating the attorneys' fees
Changing the attorneys' fees to hourly or to contingency
Spread out payment of attorneys' fees
These are hard discussions, and a good mediator can assist in "playing the bad guy" and bringing these issues to a client who is unsophisticated or refuses to listen to you.
Is the Case Ready To Settle On An Interpersonal Level?
Every case ebbs and flows in the battle of litigation. That contentiousness with the other side, its counsel, its expert, etc., and in fact, it seems every year cases are growing unruly. You and your client will hate the other side at some point, and at other times you may be able to to stay in the same room as them. As litigation proceeds, the contentious ramps up as trial approaches.
Mediation is structured cooperation in a negotiated form. If you hate the other side, you will be less likely to settle for a variety of interpersonal reasons, such as:
Fear/anger at letting them "win" by getting any recovery or "discount";
You and your clients will find things unfair;
Frustration boils up faster;
Fighting for "principal"
You need to mediate before the contentiousness begins (or when it is in a lull.) If your case is not settling, the parties interpersonal conflict may be WHY.
This is not easy to know and even harder for attorneys to recognize and then act upon. However, we are humans after all (despite the lawyer jokes) and we need to take into account this human element. Savvy attorneys may do this as to their clients, but they rarely take stock of themselves.
The interpersonal conflicts impact mediations. So, keep in mind the contentiousness level of your case and fights between the parties. If your case is not settling, perhaps the interpersonal conflicts are high. To optimize the chance of resolution, make sure your client is not at a peak of venom with the other side or vice versa. If the parties recently had a blow- up or their emotions were triggered by an extrinsic event, settling a case may be very difficult. You need to mediate when the emotions are low, so if your case is not settling, examine the attorneys' and parties' level of contentiousness, anger, or interpersonal influencers. This might just be why your case is not settling.
Is The Case Ready To Settle On A logistic Level?
You must prepare ahead of time for any mediation. To give your case the best chance to settle, make sure the logistic issues are set:
Enough time
The location is conducive to settling
The details of the mediation are worked out early so no surprises
Parties, mediators, and counsel must have lead time to a meaningful mediation. If you set a mediation in six days, you have a lot less chance of settling than if you set it six weeks out.
The parties need to time to prepare, draft mediation briefs, the defense needs to get authority, and the Plaintiff needs to itemize its alleged damages.
Plus, the parties need to prepare themselves mentally to end the fight. They have been dealing with this problem, likely longer than you have, and they need to prepare themselves to end it.
Also, make sure the environment is conducive to settling. Is it at a neutral site? If not, will that affect the parties?
Did your mediator have a conference call beforehand so the parties can workout the details to prevent surprises? Paula Young has a great article on this and Jeff Thompson discusses some interesting research on the environment of settling.
For example, did one party want to do a presentation and was not allowed to do so because of timing issues so he dug in his heels?
I set up a teleconference early to work out these details to ensure the parties and counsel know what to expect on mediation day and if there is some dispute, we deal with the problem before bringing the clients to the mediation because once they get there and an unexpected problem arises, attorneys will harden their positions, making settlement difficult.
If your case has not settling at the last two mediations, look at the logistics around those mediations. Did you give yourself and the parties enough lead time? Was the environment right? For example, was the mediation at the other’s parties’ counsel office and did that affect your client? Perhaps he felt bullied and pressured by being there so he shut down. These logistical issues impact settlement, but do not let them ruin your chance of resolution.
SUMMARY
For a visual guide:
There are many reasons a case that should settle has not. There are Client's Roadblocks to resolution (CITE) and the Attorneys' Roadblocks to Resolution.
Common Attorneys' Roadblocks include:
The case is not substantively ready to settle: To remedy perform the following:
Do your research
Obtain the necessary facts to evaluate the case
Do not wait until you have every single verified fact
Do not fear the mythical dispositive fact
The case is not financially ready to settle: To remedy perform the following:
Mediate before the case is upside down financially
Honest discussion with the client about finances of litigation
Renegotiating expenses and venders
Enlist the mediator to discuss with the client, if necessary
The case is not interpersonally ready to settle: To Remedy perform the following:
Monitor the parties interpersonal conflict in the case
Monitor opposing counsel's interpersonal conflict with you
Evaluate your interpersonal conflict with counsel
Mediate when contentiousness is low
The case is not logistically ready to settle: To remedy perform the following:
Give yourself and the parties enough lead time for the mediation
Ensure the location is conducive to settling
Work out details and potential logistical problems beforehand.
Examine the above factors and you will likely discover the reason that Nightmare Case is not settling, and implement our strategies and then you can finally settle that one-case-that-will-not-settle.
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.