A Mediator’s Observations On Effective Negotiations Skills and Techniques In A Mediation: Top 5 Mistakes To Avoid
The mission of the website and this blog is to help creative, litigating attorneys improve and refine their negotiation skills and techniques to optimize their results in a mediation. Plain and simple.
WHY DO ATTORNEYS NEED TO NEGOTIATE?
How many times have you said, "This case should have settled months ago at the last mediation?" And now you are picking a jury. Even the best litigators and negotiators forget the pitfalls that could hang up a resolution, requiring needless litigation. Last time, I focused on the Top 5 negotiation strategies. And 5 More Negotiation Strategies The things to do.
Now, we'll focus on the things NOT to do.
These are the sure-fire traps to hang up a settlement. Avoiding these Top 5 mistakes will help ensure you settle a case at the first mediation, rather than the fourth. Here are the 5 Top Mistakes to Avoid:
5. MISTAKE: RUSHING
We all are in a hurry. That Motion to Compel is due. Discovery must go out. That lunch meeting is today. However, mediations take more time than we want to admit because mediations are more than "getting to a number." The parties need time to process the idea of settlement and wrestle with thoughts of ending the fight. Remember, your client has likely dealt with this dispute for years (and longer than you have), so it may take more than a two hour session for them to come to terms that the case will be over.
4. MISTAKE: LEAVING YOUR ADVOCATE HAT ON
You were hired by a great client to beat on the other side, which you have been doing for six months. However, mediation is the time for objective evaluation, not banging the pulpit. In the mediation, don't sell your client on all the good points and omit your concerns (like you will do with the jury). This is a time when you need to counsel your client, rather than fight for your client. Let your client know what could happen if a jury goes south. If the case doesn't settle, then you can put the warrior hat back on and go to war.
3. MISTAKE: THINKING OF GROSS, RATHER THAN NET
Too many of us get hung up on the settlement number. But what's important to the client is the amount they take home or pay. You may be able to get 10% more or pay 10% less at the MSC in nine months. But how much in attorneys' fees, expert costs, court costs, deposition transcripts will be spent? Many times, a settlement hold-out for six months may end up costing your client more in the long run, reducing the total amount received or increasing the amount paid.
2. MISTAKE: HOARDING INFORMATION
How many times have you given the mediator a great piece of evidence but then said, "Don't tell the other side"? Good evidence can force the other side to reconsider its position. The evidence will come out in discovery or pre-trial motions anyways. Disclose the good stuff NOW to force the other side to settle before the Motion in Limine fights begin. You're not giving "free discovery," you're showing the other side why it should settle.
1. MISTAKE: MONEY. MONEY. MONEY
Ignoring the non-monetary items can be the death nail to a settlement. It's easy to focus on the settlement amount. But many things affect your client, and those non-monetary items matter. Such as when the payment is due. Payment over time or a lump sum. Confidentiality. Is the settlement for back wages or damages? Taxable or not? If you ignore the non-monetary issues, you could find yourself saying, "This case should have settled six months ago at the last mediation." At your next mediation, you can now avoid the pitfalls that could hang up your settlement.
As a recap, the Top 5 Mistakes are as follows: 5. Rushing 4. Leaving your advocate hat on 3. Thinking of the gross rather than the net 2. Hoarding information 1. Focusing on the money only. A top-notch attorney will sidestep these traps and can put their case is the best possible position to settle. So, when your client is anxious for you to tell the other side to kiss off and storm out because the dollar amount wasn't what he expected.
...Take a breath...And remember my top 5 mistakes to avoid.
Don't rush.This takes time, and it will take time for your client to come to grips the fight is almost over.
Plus, this is your time to shine and counsel your client on the finer points of the law. Show him how smart you are. Yelling at the other side will not do that. And when the other side's offer/demand is not to his liking, don't focus only on the money. Be creative. That is what your client is paying you for.
You've seen far more settlements that he has. Maybe you can come up with another carrot to the other side or something your client didn't even know he wanted.And then, you are settled and not picking a jury on a case that "should have settled."
WHAT NEXT?
I am a mediator in Fresno, California who mediates throughout California and beyond. I am available for all your mediations, and I can help you settle that nightmare case. 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.