Wink, Wink, Nudge, Nudge
Have you ever found yourself in the middle of a mediation listening to your overly emotional client talk about their bottom line? Do you cringe when you hear that? “I won’t accept a penny less than” is a common phrase heard by mediators. It’s common enough that mediators also know that a phrase like that is often accompanied by a “wink, wink, nudge, nudge” from the party’s lawyer. Sometimes the lawyer herself is the one uttering the phrase and doing the winking and nudging at the same time. Sometimes the lawyer is even unaware they are doing it. What is this about? How does this help the mediation process?
Simply put, it’s a show: show of posture, show of force, show of resolve, show of determination. That’s all well and good, but experienced mediators (and experienced lawyers, for that matter) know what this show is really about: a temporary diversion participants sometimes need to take in order to face real life. Because in real life, if the opposing side offers “a penny less” than your “bottom line,” does it really make sense to advise the client to walk? What if that penny represents just $100? What if it represents $1000 or $10,000? What a “penny” is worth depends on the case and the settlement being discussed. It also depends in large part on your client. I’ve actually had to ask clients to describe what their version of a penny is and then gone through possible scenarios. Often, I discover that a “penny” is really not a penny at all.
Enter “wink, wink, nudge, nudge.”
I believe that the more information my clients give me during the mediation process, the better armed I am to negotiate a settlement. As a mediator, does that mean I actually want to know “the bottom line?” No. In fact, I don’t believe a true bottom line exists until the case is settled or actually goes to trial. The “wink, wink, nudge, nudge” only tells me there is more to the story. But what is the story? Crazy facial contortions do not equal information. My first thought is do you have a tick? Something in your eye? Perhaps you’re just tired and trying to stay awake. Remember that your mediator is not a mind reader. We need information. Is this “bottom line” you’re winking about your client’s, yours or your boss’s? Does that winking and nudging signal that the numbers are flexible or that you need help with client control?
I recently successfully mediated a case where after a wink and a nudge, I took the Plaintiff’s lawyer aside to talk. The lawyer was concerned about client control and privately asked me to help educate their client on the potential risks and rewards of going to trial. The Defendant’s top offer was $15,000 less than the lawyer’s client’s “bottom line,” but after going over potential risks and rewards of going to trial, I asked the client, “what are you hoping to take away from this?” The client gave me a number that even their lawyer found difficult to justify. It wasn’t an outrageous number, it was just slightly unreasonable considering the specific facts of the case. This shifted the conversation to what the client needed the money for. We discussed how much time the client would have to take off work to go to trial and quantified that time. We discussed the risks of the potential shifting of costs with Defendant’s CCP 998 offer. We discussed how nice it would be to know at the end of the day that the client would have a check in the mail, with real money they could count on. I told the client it was their decision and that there was no pressure to decide today. But at the end of that conversation, the client realized they didn’t need to walk away with their original “bottom line,” and that the offer on the table was actually very fair.
There was a wink, wink, nudge, nudge on the other side of the table as well. I sensed there was room to move despite Defendant’s insistence this was their top number. The wink and nudge helped me ask questions revealing that Defendant’s number represented their bottom line for bodily injury only. They had wiggle room on property damage, loss of use, and loss of earnings. Their signals led to some further creative negotiations, and we were able to get another $6000 on the case and settle. The Plaintiff walked away with significantly less than their “bottom line,” and the Defendant gave up more than their “top dollar,” but all parties were extremely pleased with the successful outcome.
All this from a “wink, wink, nudge, nudge” on both sides of the table.
By Terri Lubaroff