Remember when you were a kid and your mom forced you to ask a group of the “cool kids” to play?
Close your eyes… you remember. As you walked toward the cool kids, your mouth felt dry. Your palms got sweaty. Your heart felt like it was going to burst from your chest and your breath came in short gulps. You approached the kids and finally gathered the courage to ask in an awkward croak, “Can I play?” Before the kids responded, you stole a look at your mom who was beaming with pride. But you were terrified. Doesn’t she know your fears? Doesn’t she appreciate what could happen? What if they laughed at you? What if they made you feel stupid? What if they said “no?”
Believe it or not, this fear of being told no, of being laughed at and of feeling stupid, follows most people into ripe old age. We crave the attention of others. We want their approval. We need fellow humans to be supportive, encouraging, and kind. We need this at home, with our friends, and yes, even with our business associates.
But here’s the rub: the world doesn’t coddle us. Businesses don’t support employees by offering hugs and “boo-boo bunny ice” when we get our licks. It’s a dog-eat-dog world out there and we’ve got to find a way to navigate through it.
In the mediation context, the worst thing someone can say is NOT “no.” Rather, “no” gives us information we previously lacked. It tells us where the other parties stand on certain issues. It sets parameters for settlement. It lets us know how seriously the other parties are taking their positions and why.
Instead, the absolute worst thing we can hear in a mediation is, “why haven’t you asked before?” An answer like this leads to all kinds of potential “what if’s?” What if you had asked before? Could litigation have been avoided? Could the issues have been resolved amicably before the filing of a lawsuit, saving considerable time, money and emotional distress? That depends. It depends on the skill of the questioner to get to the heart of the problem, it depends upon the answers given, and it often depends upon the timing of the question itself.
Questions that might be asked at the outset of a conflict in an effort to resolve a dispute will be drastically different from those asked on the eve of a trial. For example, an employee complaining about sexual harassment to a human resources director might be satisfied with the company’s actions in response to the alleged harassment if all of his or her concerns are addressed. But never assume you know what all of those concerns are. Ask questions that get to the person’s underlying interests, not just their subjective complaint. Perhaps firing the offender seems like the right choice, when in reality there’s a continuing culture of harassment at the company. The employee is not likely to be satisfied if you cut out one tumor only to leave the cancer. In an early stage of conflict, the questions asked should be broad enough to facilitate dialogue between the parties involving candor and creativity in an effort to communicate freely and without fear. A mediator facilitating these types of difficult pre-litigation dialogues can help craft solutions that will benefit all parties while minimizing potential human and financial costs.
Questions that might be asked during litigation are often by necessity defined by the more narrow parameters of relief, monetary or declaratory, simply because these are the only remedies available in court. And once insurance companies get involved, often the only thing to discuss is money. But there are two elements to the idea that the “worst they can say is no” which must be considered. What is it that you are asking and what is the timing?
There are strategic reasons in pre-trial mediation to not have the attitude of “the worst they can say is no.” For example, coming into a mediation with a demand that is hundreds of thousands of dollars over a previous settlement position with no explanation for the defense is a great way to immediately chill negotiations and prevent settlement. On the other hand, some questions can shape the other party’s perceptions about what exactly is in dispute and how the opposing party is going to characterize certain facts. Perceptions can inform the entire settlement process from start to finish, good or bad. Wouldn’t you rather ask the questions that can do the shaping?
One recent example comes from a personal injury case where the plaintiff’s lawyer lacked client control. The plaintiff had a list of prior medical conditions that the defense counsel and adjuster asked me not to disclose because they felt it was a “smoking gun” for their case. However, the plaintiff’s attorney did his research and knew about these prior medical conditions. He took the time to address his concerns with his client, and then asked me to disclose these prior medical conditions with the defense and to specifically question the defense about how this disclosure was going to affect settlement negotiations. I communicated their responses to the plaintiff’s attorney who then used that information to help adjust his client’s expectations and ultimately his negotiating strategy. He understood that asking the question would get him enough solid information in front of his client to help educate the client about the perils of moving forward so aggressively, but it also gave the plaintiff’s attorney something he didn’t expect… an opening. The defense told plaintiff’s attorney they weren’t offering more than one-third of the medical bills on a non-disputed liability case because of the prior medical conditions. But they also said that if the plaintiff could prove that something didn’t exist prior to the injury, they would put more money on it. Like I said, the plaintiff’s attorney had done his research and was able to prove one of the injuries. The defense did put money on it and the case settled. The questions informed each party of expectations and needs. And instead of hearing a “no” to an outrageous demand not based in reality, the lawyer heard an opening. Both sides walked away happy.
Most conflict is born from either miscommunication or an abject failure to communicate. Even in late stage settlement negotiations, communication between the parties is key to resolution. What is communication but a series of questions and answers? The last thing you want to hear after spending considerable time and money on a conflict is “why haven’t you asked before?” Failure to ask questions, even hard ones that might result in negative answers, is a failure to communicate.
Please feel free to call or e-mail me with your questions. I look forward to helping you resolve your dispute.
By Terri LubaroffRead More
It was a warm, sunny day in Los Angeles yesterday, so I decided to go for a stroll. A car passed me with a license plate that read, “PRODUCE.” In Los Angeles, the probability that the person inside that car is a film, television, or music producer is about 99.9%. But if I was taking the same walk in my rural hometown of East Liverpool, Ohio, the person driving that car would most likely be the owner of the local grocery store. And if I were in a major city that housed an insurance company headquarters, the car’s owner might be an insurance agent. The meaning of the “PRODUCE” plate will be wildly different, depending upon where you live and the context in which the owner works.
This is relevant to mediation for one very important reason: context matters! Parties need to understand each other in order to effectively communicate positions and interests. If each party says the same words, but those words have vastly different meanings, communication becomes difficult, if not impossible. Context informs a person’s perceptions, opinions, and needs. Within this framework, context can drastically change the meaning of a word.
For example, one party accuses the other party of not being “reasonable.” Reasonable is one of those words that can have vastly different meanings. The mediator must gather as much information as possible to determine the meaning of “reasonable” to each party. It’s then the mediator’s job to try to educate each party as to the other’s definition. The goal is for each party to understand the other’s definition of reasonable, even if they don’t ultimately agree on the definition.
In a personal injury case, “reasonable” to one party may be a full reimbursement for out of pocket expenses, pain and suffering, medical costs, attorney’s fees, future medical, lost earnings, future earnings, and property damage. This version of “reasonable” stems from plaintiff’s perception that defendant caused the accident and there would be no damages but for the accident. On the other hand, the defendant may feel that “reasonable” is limited to property damage and a small portion of medical bills. Delving into defendant’s reasoning may reveal that there are comparative liability issues, that the plaintiff is a poor witness, that the plaintiff has a prior medical condition, or that plaintiff’s medical treatment was not “reasonable” based on the fees charged or the amount of therapy given.
So where does this leave the parties? We go back to the element of context. In the context of mediation, the parties must decide what is reasonable based on the information at hand, their risk adversity and need for closure. But this still might not be enough to move toward settlement. In the context of a trial, which may be the next step after a failed mediation, who decides what is reasonable? It’s not the parties, their attorneys or their experts. The ultimate answer is that the jury must determine what is reasonable. With this in mind, no party should leave a mediation without realistically quantifying their probability of success in front of the jury. Mediators should not be afraid to ask the parties to honestly assess their arguments in front of a jury of “reasonable” people. This honest assessment should help parties adjust their offers and demands accordingly.
For example, I recently held a personal injury mediation with admitted liability. The defendant refused to pay full medical reimbursement because there was a two-month gap in plaintiff’s treatment. Defendant had a good argument on paper that this position was “reasonable” and made the assumption that plaintiff was lying about her injuries based on the facts at hand. Defendant strongly felt that the jury would buy his argument regarding “reasonable” and negotiated accordingly. However, when plaintiff revealed she had moved back East for those two months to take care of her dying mother, the context of defendant’s argument changed. Which story would the jury buy as being more “reasonable?” Defendant knew that the jury would be sympathetic to the plaintiff under the circumstances and made an honest assessment of his likelihood of success. Knowing his arguments would sound cold and callous to a “reasonable” jury, he adjusted his position and the case ended up settling for full medicals.
Defining context is a key element to settlement. The goal is to develop definitions based both on personal context (how the parties define “reasonable”) and public context (how the jury might define “reasonable”). An understanding of both should help each party find positions more likely to lead to settlement.Doesn’t that sound reasonable?
By Terri LubaroffRead More
We’ve all dealt with a “difficult personality.” This is the person we are afraid to run into on the elevator at work, the family member who never fails to offend, or the jerk at the furniture store who refuses to refund your money on a delivery that was never made.
The difficult personality is a confounding beast. It comes in all types. For every egomaniac, passive-aggressive cretin and negative Nellie, there are a dozen other types of difficult personalities ready to pounce. They stalk your offices and lie in wait at social events, looking for easy prey. They feast on others’ vulnerabilities and use their limited but determined wiles to gain the upper hand in conflict.
Having worked in the Entertainment Industry for fifteen years, I witnessed a lot of terrible behavior. I’ve been in the workplace with screamers, passive-aggressive players, deflectors and egotistical maniacs. I’ve seen bosses throw trash cans at weary assistants, drunk actors trash hotel rooms, and executives behaving badly at parties. Even more insidious are the difficult personalities who quietly but steadily derail their own best intentions and the intentions of those around them without even realizing what they are doing. I’ve seen people doing this without understanding that they are trashing their career, ruining their families, or making enemies out of friends until it is too late.
One of my favorite stories about a “difficult personality” revolves around a very successful and wealthy CEO. This person ran a company with over 200 employees who worked day and night to make the company successful. Like most companies, some of the upper-level executive employees were paid very handsomely, but most of the employees earned fairly modest five-figure salaries and struggled to make ends meet. All of the employees relied heavily on traditional annual Christmas bonuses to make their holiday expenses easier to handle and to ease them into the New Year. The bonuses represented a significant portion of their annual salaries and had become such a tradition, they were seen as automatic.
After a particularly good year, the CEO came to the company holiday party and announced that instead of their annual Christmas bonuses, he was giving everyone a Cartier watch. He proudly made this announcement with the added comment, “after all, I wouldn’t have been able to buy my third vacation home in Hawaii without all of your hard work.” The executive was so ignorant, insensitive, and selfish, he simply could not understand why his employees practically revolted. This so-called generous replacement gift effectively represented a 10% salary decrease for most of the employees. Worse, he refused to change his mind about reinstating the bonuses. His egotistical response was that his employees were lucky to get bonuses at all, and that if they didn’t like the situation they could quit. He conversely offered that the employees could go sell the watches for cash if they were so irresponsible with their personal budgets. This was not a new attitude. The CEO was known for his belittling comments, explosive temper, and argumentative nature. This CEO was the very definition of “difficult.”
Thankfully, six of the company’s top executives intervened. They personally donated their still intact annual bonuses to distribute amongst the other employees and prevented a huge employee walkout. The CEO’s faulty thinking led him to believe that he was doing something nice for his employees, but he failed to look past his self-congratulating ego about his own largesse to really see how his decision was negatively affecting his entire company. His company’s productivity faltered, and he lost the respect of several of his high-level executives, all of whom left the company within the next five years.
The moral of the story is that difficult personalities often don’t understand that the consequences of their actions may be a result of their own bad behavior or faulty thinking. To this day, the CEO blames others’ shortcomings for his company’s loss of earnings. He simply cannot understand that his own actions created the negative situation his company now faces.
While the entertainment industry is rife with difficult personalities, it doesn’t possess a monopoly on them. In fact, every facet of life can contain a difficult personality. Chances are that if someone is difficult at work, they are equally difficult in their personal lives. The judgmental family member might also be a confrontational co-worker. One is not mutually exclusive of the other, especially because most personality flaws develop over a lifetime of innate and learned behavior.
The challenge for dispute resolution professionals is that we must manage, placate, and confront these people with finesse and empathy in order to resolve conflict. We must train ourselves to communicate effectively, allowing for the personality flaws of the difficult individual while separating our own horror at their terrible behavior. We do this to better understand what is driving the difficult personality’s behavior so we can get to the root of the problem in order to resolve the conflict.
Most truly difficult personalities have some unifying elements that define their bad behavior. Arrogance, ignorance, selfishness, low self-esteem, fear, coldness, immaturity, insensitivity, negativity, interpersonal difficulties, faulty thinking, and pettiness are some of the most common elements.1 Many difficult personalities are bossy, negative thinkers who consider themselves superior to others. Other difficult personalities overcome their insecurities by belittling others to make themselves seem more important.
When your job is to deal with an ignorant jerk, what do you do? How do you connect with a difficult personality and stay grounded? How do you soothe the beast? Unfortunately, when dealing with any personality issue, the answer must be, “it depends.” It depends on what type of difficult personality you’re dealing with and what that particular individual needs from you to get past their own issues so they can discuss underlying interests.
An in-depth understanding of the traits that make up a difficult personality can be helpful. Below are ten common traits many difficult personalities share:
1. Ego. The most common trait of the difficult personality is an overly-healthy sense of ego. The Oxford Dictionary defines ego as “a person’s sense of self-esteem or self-importance.” Everyone has some sense of ego, but those with difficult personalities have a sense of self-importance that often reflects a belief that they are God’s gift to the world.
2. Insecurity. It sounds oxymoronic, but even those with huge egos have an innate sense of insecurity. In fact, an overinflated sense of self may come directly from strong insecurities about everything from looks and personality to work, family, or friends. People with high levels of insecurity are also often extremely negative. Negativity allows someone to mask or deflect their own shortcomings by projecting them onto others. As such, they often belittle other people to make themselves feel better.
3. Control. Many difficult personalities have control issues, but not all control issues manifest in the same way. One difficult personality might have a need to control while another may be out of control. In the business world, this represents the micromanager versus the careless manager. Both personalities are difficult and both lead to conflict, but in very different ways. Lack of control results in fear, which then leads to anxiety, so control can also refer to the level of anxiety an individual exhibits. Anxious people can be extremely frustrating and tedious to deal with because their fears are often not rational.
4. Recognition. Many difficult personalities have a need for recognition. They often want to be recognized for work, ideas, and accomplishments that may not be in line with reality, and they will often take credit for someone else’s work. Further, many exhibit a need to always be “right,” arguing so they always have the last word.
5. Confrontation. Some difficult personalities thrive on confrontation while others are deathly afraid of it. What makes direct confronters easier to deal with is the ability to prepare for the inevitable fight. More insidious and hurtful; however, are the passive-aggressive personalities who have an underlying need to be liked. They try to please, but are unable to live up to their words, resulting in nasty quips that manifest in unexpected and often inappropriate ways.
6. Expectation. Most difficult personalities have extremely high expectations of themselves and others. They do not suffer fools lightly and expect excellence in even the most mundane tasks. Someone who doesn’t manage expectations well has a difficult time accepting legitimate excuses for anything less than perfection. They tend to be extremely judgmental and rigid.
7. Work Ethic. Along with high expectations often comes an excellent work ethic, or conversely, a faulty belief that one possesses an excellent work ethic, which may be contrary to reality. Many difficult personalities are indeed hard workers who become frustrated when others fail to live up to their own potential, but the difference here is like the difference between a critic and a coach. The line separating the two lies in how each individual communicates. The coach will encourage and teach while the difficult personality will criticize and belittle.
8. Pressure. The pressures of the modern world can be unbearable at times. Between 24/7 work schedules, a lack of work/life balance and the constant barrage of media invading our lives, people are simply unable to unwind. Moreover, as more and more families become dependent upon dual-incomes, many find that the pressure to be everything to everyone is simply untenable. Many of us are unable to separate our work issues from our family issues, and each individual problem can feel like everything is piling on. The difference between the average person and the difficult personality is that the latter is unable to deal with these pressures in rational, non-reactive ways, leading to scapegoating and blaming where one situation has nothing to do with the other.
9. Strong Values. Many people hold strong values and stick to their beliefs even when their arguments have no basis in reality or logic. This happens in religious disputes, but these types of strong value-based arguments often drive other types of conflict as well. When someone holds strong values and argues them persuasively, relationships can be forged even if the parties agree to disagree on certain issues. This is based on mutual respect and an ability to recognize common underlying interests. Unfortunately, the difficult personality often mistakenly characterizes arguments as value-based rather than logic-based simply because their initial position is an emotional reaction to the conflict. This doesn’t necessarily indicate faulty thinking, but their need to be right often backs the difficult personality into a corner they are not likely to voluntarily relinquish. To do so would cause them to lose face; so instead, they use value-based arguments as a cover. Because their arguments make little sense, once deeply probed, the difficult personality will often shut down and refuse to communicate which appears obstinate and unreasonable.
10. Mental Health Issues. Of course, some difficult personalities have mental health issues. They may have potential psychological problems or issues with drug or alcohol abuse. It is the purview of the psychology professional to discuss these matters, but dispute resolution professionals without a psychology background need to be aware of such possibilities, how their manifestations affect conflict, and how conflict can be resolved.
Now that we are armed with the ability to recognize the difficult personality, how can we soothe the beast when it rears its ugly head? The single most important skill a dispute resolution professional must possess is the ability to remain calm while in the eye of the storm. The goal is to pacify the difficult personality in order to allow them to communicate in a healthy and productive manner. How can this possibly be accomplished when the subject is screaming at you?
1. Keep Calm! Losing your temper with a difficult personality will only escalate the conflict. It is of paramount importance that you do not take the anger personally. Sit down. Take a deep breath. Steel yourself. Take your own ego and hurt out of the equation. Use a calm tone of voice and don’t defend yourself. If you need to “go to the balcony,” do it.2 Soothe their ego by using genuine empathy. Ask them how you can do better. Deflect or ignore their personal attacks on you. Gain understanding through active listening and by putting yourself in their shoes. After all, the very definition of a difficult personality is often colored by one’s perceptions and points of view. Examine your own point of view. You may discover the source of the conflict revolves around a misunderstanding born from differing perspectives.
2. Help the difficult personality feel safe and secure. They may be reacting to perceived threats to their ego, position, or goals, so bring them into a physical environment where they will feel more comfortable. For some, this means discussing difficult issues behind a big, protective desk while the dispute resolution professional sits in a short, uncomfortable chair on the other side. For others, food or exercise may put the difficult personality at ease. Whatever it takes to make them feel safe, do it! Once you’re there, make them feel like you are working as a team and allow them to vent. Don’t criticize, roll your eyes, or make faces. Maintain direct eye contact. If sitting, lean forward. Keep your body position open to indicate you are there to hear them out. Make supportive comments and allow them to feel like you are on their side.
3. Work to learn all of the underlying facts. Ask the “who, what, when, where and why” questions. Do not allow the difficult personality to deflect or ignore the “why’s.” This is important because the difficult personality will often try to avoid answering “why” due to their insecurities and need to control; however, their answers will inform how you continue with the entire interaction. Push them, but do it gently and with genuine concern. Play upon the difficult personality’s ego by asking for their help so you can better understand what is driving the conflict. Don’t assume anything. Ask follow-up questions that gently probe their thought process without being confrontational. Demonstrate you are being sensitive to their needs. Don’t interrupt, but tactfully keep the conversation on track. Let them do the talking while keeping a mental checklist of questions that their comments elicit and use those questions to guide the subject’s thinking into a more constructive realm. This helps build mutual respect and rapport that allows for an open flow of communication.
4. Guide the subject towards rational thinking by asking questions that gently probe their logic.To do this without provoking the beast, act as a sounding board rather than a lecturer. The goal is to appear non-judgmental by withholding criticism and allowing for venting. Keep your own responses short and to the point, and give the difficult personality the power in the room by asking for their ideas. Allow them to express emotion, frustration, and fear. Ask open questions that will allow the difficult personality to find the “right” answer on their own. Don’t provoke anger and certainly refrain from making your own personal comments, which will only cloud the conflict, rather than clarify it.
5. Be sure to help the difficult individual define their values. Often, they discover that their values are not that different from their opposition’s, even though the expression of those values may be vastly different. To accomplish this, there are two steps. First, you have already asked questions that revolve around logic. If you are challenging that logic, do so in a way that expresses your own ignorance and not your fundamental disagreement with the subject’s ideals. At this point, the subject should feel comfortable enough with you to openly discuss the emotional elements of the conflict. This is the second step. Emotion defines value and gets to underlying, deep-seated interests that may be driving the conflict in the first place. Be sure not to confuse the answer to the above question of “why” with the subject’s values. These are not the same things. “Why” explains how the conflict came to be. “Values” define someone’s true interests, which can lead to creative and mutually beneficial resolutions not previously explored. With an understanding of the underlying interests, a dispute resolution professional has broken through the wall that is likely preventing resolution. In doing so, the difficult personality has been placated, but more important, a foundation of trust from which to work has been built.
The best advice when dealing with a difficult personality is “if you can’t say anything nice, don’t say anything at all.” Because soothing a difficult personality takes a great deal of patience, tenacity, and finesse, check your ego at the door. Use all your powers of empathy and logic to break through the barriers that difficult personalities erect and put yourself in their shoes. Most important, don’t take it personally. Following these steps will help facilitate productive and honest conversations with even the most vicious beasts.
By Terri LubaroffRead More
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 LubaroffRead More
Ever meet a professional poker player? They win or lose by playing the odds. A good poker player understands the cards, can anticipate the other players’ moves and knows the odds of winning.
Mediation is not that different from playing poker. In mediation, the parties make decisions based on their knowledge of the facts and their odds of success. Just like poker, each side bluffs, angling for the best deal, often trying to get it through manipulation of facts, pure bluster and hardline negotiating. The parties engage in a game of back and forth bargaining, waiting for the other side’s “tell,” so they can make an appropriate move.
The difference in poker is that once you’ve made your bet, you either win or lose. Arbitration and litigation offer the same win or lose dynamic, but mediation allows for mutual gain. Moreover, in mediation, parties have a choice. They can choose to take a deal, they can choose to offer alternatives, or they can choose to walk. The tricky element is that choice requires the participants to make some very difficult decisions in a relatively short amount of time. Parties must understand their case inside and out so they can play the odds with as much information as possible.
I’ve had three separate employment cases in the past several weeks where the participants were offered choices that seemed impossible. Despite the fact that all three cases had potential fatal flaws, defense made offers that the plaintiffs’ lawyers considered reasonable considering the evidence. The problem was that these offers were universally much less than what the plaintiffs hoped to get. The plaintiffs were absolutely petrified to settle, worried that the deal offered might be less than what they could win in court. All three plaintiffs asked, “What are the odds of winning at trial?” Now, as any good mediator will tell you, we don’t have a clue about the odds of any one person winning their case. All we can do is ask well thought-out questions and ensure the parties answer them honestly. The goal is to facilitate a process that will help the parties determine odds on their own.
Asking the right questions is of utmost importance in these situations. Knowledge is power, so the mediator asks questions that help the party gain knowledge, moving the considering party from a position of fear to a position of empowerment.
Below are just a few sample questions that the mediator can ask in these situations:
1. Is there an immediate need for money?
2. How much will a trial cost the party in real world dollars? Consider more than attorney’s fees and costs or whether a statutory offer to compromise has been made. How many days will the party have to take off work? What will that cost in lost wages, travel expenses and childcare? Would that cost you more than what you could expect to win at trial? What is your budget?
3. What are the pros or cons of taking this offer? Do you have better alternatives? Are you open to creative ideas?
4. What is your risk adversity?
5. Are there any pre-trial hearings or exams that could cause defense to lower future offers?
6. If the jury awards you the exact same amount after a lengthy trial, would you take home the same amount as you would today? Would it be less or more? How much less or more?
7. What is the worst case scenario? What if you lose? How much money would you give up to make sure you came away with something? How would a judgment against you affect your business or personal life?
8. What is your honest evaluation of the facts, witnesses and law? Are you a good witness? Why or why not? Are there other witnesses you’d rather not involve (i.e., a minor or superior)?
These types of questions help parties move from fear-based decision making to knowledge-based decision making. Answering such questions helps the parties understand the odds as defined by their own needs and risk aversion.
Next time you’re in a mediation and an offer has been made that is lower than expected, but not so low that you can’t walk away without real risk, the offer must be seriously considered. Mediation is an opportunity to explore whether an offer that seems low now may have been wonderful in hindsight. It often depends upon the cards you’re dealt, but remember that in mediation, how you play those cards and how you determine the odds can be defined by you.
By Terri LubaroffRead More
Living and working in a diverse culture has its challenges. It gives us ample opportunity to work, interact, and live with people who speak very little English or none at all. This presents many challenges for mediators trying to communicate effectively with non-English speaking clients during mediation.
The 2010 U.S. Census data revealed that 27.8% of the population in California is Hispanic. Texas and Florida also have large Hispanic populations of 18.7% and 8.4% respectively. Additionally, the Asian population grew faster than any other racial group between 2000 and 2010. This melting pot means that there are entire communities across the country that speak only Spanish, Russian, Korean, or Mandarin. These communities are part of our wonderfully diverse culture and use the legal system expecting fair results; however, fair results may be more difficult to obtain when the parties to a lawsuit speak little or no English.
In 2009, Dallas lawyer Angel Reyes and two professors from Texas Tech University’s Rawls College of Business published a study in Social Science Quarterly which found that Spanish speakers who relied on a translator during court testimony were 15% less likely to obtain a jury verdict that exceeded their last settlement offer than were English speakers.  The ABA article announcing the results of the study outlined that the authors of the study believed that lower civil awards were a result of juror bias, rather than a misunderstanding of the plaintiff’s testimony, as translators were found to be consistently accurate. While the study only looked at Spanish-speaking plaintiffs and it is unclear whether the results would translate to other non-English speakers, the implications are clear: bias exists when language is a barrier to understanding.
If a jury can be biased when listening to a plaintiff’s translated testimony, why wouldn’t a mediator be equally biased when mediating a case with a non-English speaker? Mediators are only human. We have biases and prejudices, despite our mandate to be “neutral.” The importance of this realization is that we must be self-aware enough to understand and adjust our own bias when we are mediating.
This is especially important when a client’s lawyer is acting as their translator. Our language barrier bias prevents the client from being heard in the same way we would hear a native language-speaker. This bias could prevent us from engaging with the client, failing to fully examine their positions and underlying interests. This is dangerous because the failure to communicate leads to conflict. This creates distrust between the client and their lawyer, the client and the mediator, the mediator and the lawyer, and even more disturbing is the possibility of creating distrust between the client and the legal system itself.
Mediators use nuanced communication to help clients make decisions in a mediation, so what happens if the communication happens through a translator? What happens if the translator is the client’s lawyer instead of a court-certified translator?
Lawyers who act as their client’s translator may be saving money, but a lawyer must be careful to represent their client’s underlying interests and translate everything effectively or they may be selling the mediation process short. Attorneys who pick and choose what to translate during mediation may be good advocates, but are not serving the best interests of their clients. They are controlling the mediation process rather than letting the mediator guide the participants in a way that facilitates resolution. Mediators are good at their jobs because they have a “bird’s eye view” of the conflict. If one party blinds that view because of language barriers, how can they be effective?
Attorneys translating for their clients must also remember that the mediation process is educational for their clients. A good process must allow for give and take between all participants, allowing the client to ask hard “what-if” questions and allowing lawyers to educate their clients about their case. Most importantly, it allows the client to feel like they’ve been heard. A lawyer who fails to use mediation for these purposes may end up trying a difficult case that their client might have been willing to settle had they had a voice during mediation.
A mediator must have the ability to recognize language barriers early on and develop a method of dealing with them. Some mediators ask the participants to bring a court-certified translator to the mediation. Other mediators ask the parties to provide a translator of their own choosing, even if it’s the lawyer’s paralegal or the client’s relative. Once in a while, mediators will recuse themselves in favor of a mediator who speaks the client’s native language. Sometimes a mediator has no choice but to mediate the case with the client’s lawyer acting as translator. In these cases, it is essential that the mediator have a private conversation with that lawyer-translator prior to the mediation, outlining their expectations and rules regarding the translation and why they are important. If a lawyer-translator fails to follow those rules during the mediation, don’t be afraid to stop the mediation to have another private conversation with the lawyer-translator on the importance of client engagement.
Another important element of mediation with non-English speaking participants is the idea of “status.” Status refers to both the power balance and to the self-worth of the participants. A person who is ignored or shoved aside and who can’t understand what is going on in a mediation may feel less respected and may feel like they have lower importance or “status.” Awarding higher “status” to only the active participants in a mediation or to only the participants who can speak your native language is a common pitfall all mediators face. It takes a great deal of skill, patience and — yep, I’m going to say it — chutzpah to communicate with a plaintiff or defendant who don’t speak your language and whose only source of translation is their lawyer — especially when their lawyer is not willing to act as a word-for-word translator.
For example, I recently held a mediation with an elderly plaintiff we’ll call Miguel who spoke only Spanish. Miguel’s lawyer was clearly frustrated even before entering the mediation room. The lawyer used the fact that his client didn’t speak English to shape the mediation into a format with which the lawyer was most comfortable. The attorney dominated the mediation, shutting down his client’s questions and translating only as much as was absolutely necessary to move discussions along. This was not a recipe for settlement; it was a recipe for disaster, miscommunication, and missed opportunities.
Miguel was clearly frustrated, but because of the lawyer’s higher “status,” the client acquiesced and sat quietly, trying to discern what the lawyer was saying to me in English while only getting snippets translated. When I told the lawyer I’d be more effective if he translated everything we discussed, he refused. He wanted to cut to the chase and see if defense brought any money. He clearly didn’t want to waste any time on this mediation if he and his client were not going to benefit. I understand that attitude, especially in the Los Angeles Superior Court system where parties feel that they’re often “ordered” into mediation rather than the process being voluntary; however, a lawyer’s failure to give status to one’s own client in the mediation process could be the very thing that leads to impasse later on because of a breakdown of trust between attorney and client.
On the flipside, I had another mediation a few months ago with a lawyer who was very careful to translate everything that was going on in the mediation. The lawyer took the time to answer the client’s questions and concerns, translating their client’s comments to me so I could help them through the process. That mediation was very successful and took very little time to reach resolution because all the participants had equal “status” in the room. The clients felt listened to and heard; they felt respected and vindicated.
When an attorney fails to accurately or completely translate during a mediation, the client can leave the mediation feeling cheated, distrustful of their attorney and the process, and even more frustrated than they were before coming to the mediation. While an attorney may save a chunk of money by not having a professional translator present, he opens himself up to other issues later on if he’s not careful. Mediation is a process designed for clients to save money, time, and emotional energy. It is a lawyer’s job to advise their clients through the process but ultimately the clients are the ones that must make the final decision. If a client can’t understand what’s going on in the process, no decision can be made. It is both the lawyer’s and mediator’s responsibility to ensure that their clients understand what is being said so they can make those decisions.
By Terri LubaroffRead More
Donald ambled into the conference room with difficulty. He looked like a nice, working class man in his retirement years, but the gray pall he carried indicated his health wasn’t going to let him do a whole lot of fishing on his beloved Lake Havasu any time soon.
Donald slipped in a puddle of water at the hospital where he was receiving therapy for an unrelated condition. The fall was horrendous… so bad that he heard his hip and shoulder snap. His hip required immediate surgery. The shoulder would be an ongoing problem. Although the hospital admitted that Donald fell in their hallway, their staff was adamant that large “Caution, Wet Floor” signs were present. They refused to pay for his medical bills and he sued.
The first mediation ended with both parties agreeing that further discovery and an independent medical examination were needed to determine the nature and extent of Donald’s injuries. The second mediation happened several months later, when both parties were finally ready to negotiate.
One of my biggest hurdles as a mediator is to overcome each party’s expectations about what might happen in mediation. The types of expectations that a mediator must overcome include issues of liability, causation and damages, as well as possible defenses and possible accusations; however, the most interesting and challenging mediations come with a set of expectations based on history.
And Donald came with a lot of history.
In the 1980’s, Donald was injured in an accident and sued a well- known manufacturer for product liability. The product defect had injured over 65 people, and the first case that went to trial resulted in a six-figure verdict for the plaintiff. Donald’s case was in trial at the time, and the manufacturer settled with him before the jury came back from deliberations for a low six-figure sum. That case set his expectations for future litigation. Donald believed that if he got low six-figures for an injury that wasn’t very severe and healed quickly, he should get a lot more for this current injury, which was much worse and would never fully heal. With pure optimism, he told me he wanted enough settlement money to take care of his kids when he died and to buy a new truck and a cabin in the mountains.
The lawyers for the hospital had a “history” they wanted me to know about, too. Not only was the hospital denying full liability because their witnesses testified that warning signs were present, they had an entire file of Donald’s history that reflected negatively on his case. This file included a doctor’s recommendation for a surgery Donald was trying to attribute to the fall a full six months prior to the accident. The file also contained a history of Donald’s other falls. In fact, he had fallen on 13 separate occasions prior to this one, including one the day before at the same facility. Finally, Donald was in the facility because of a prescription drug dependency. The hospital was prepared to negotiate, but at a small fraction of the level that Donald and his lawyer were hoping for.
I quickly discovered that Donald was not being honest with his lawyers about his history and the reason for his high expectations. It was time for an intervention. I spoke to Donald’s lawyer privately. I explained the defense’s position. I asked the lawyer what her expectations were. She privately informed me that she was concerned about Donald’s expectations to begin with and the new information provided by the defense just solidified her resolve to settle the case in mediation. She said that it was going to be my job to educate her client about his case in the “real world.” She was concerned that his expectations would be the obstacle to resolution.
The next six hours were spent talking to Donald and negotiating within the framework of his expectations as we slowly adjusted them downward. His lawyer knew that Donald wanted to feel like he got a “fair” deal, and that he needed to fight for it, so every 30 minutes or so I would ask him for a demand and would communicate that to the defense, knowing that until we got below a certain number, the defense was just being patiently compliant with my request that they stay and negotiate in good faith to allow me to do as much as I could with the plaintiff before they gave up.
We discussed Donald’s family, his hobbies, and his injuries. We built a rapport and established a high level of trust. We spoke about his hopes and dreams for the money. We discussed the idea of “fair” and what that meant to him and what that might mean to someone coming from a different perspective. We quantified how much a new truck would cost, and how much a cabin in the mountains would cost. We analyzed how much Donald’s medical bills were in comparison, discussed what that means in the context of general damages, and Donald slowly began to realize that his expectations were not in line with reality.
Finally, after many hours, Donald understood the hospital wasn’t trying to bankroll his lifestyle, just compensate him for the injuries he legitimately received from the fall. The settlement he agreed upon was six-figures less than he originally expected, but Donald still left feeling like he got a fair deal.
Before mediation, it is important to understand your client’s expectations because those expectations can often be the one and only obstacle to resolution. A neutral mediator can help a client work through their expectations so all parties can determine whether those expectations are in line with the legal case or outside the scope of the injuries claimed.
The biggest challenge for the mediator in this context is that he or she must remain neutral throughout this process, taking great care to ensure that each party’s interests and positions are fully examined and addressed.
In this mediation, the plaintiff’s lawyer gave the mediator strict marching orders that the mediator was to help adjust her client’s expectations. Mediators might rightly ask, “Whose interests must the mediator serve? Which party is the mediator’s client: the attorney who hired the mediator or the attorney’s client?” These are valid ethical questions that should be addressed. After all, a mediator must be careful not to brow-beat a client into accepting an unsatisfactory settlement offer. The client must feel comfortable with whatever decision they make, even a decision with which their own lawyer disagrees.
In commercial mediation, especially when a plaintiff’s lawyer works on contingency (as in this case), the mediator’s job is to help facilitate both the lawyer’s and the client’s positions, their mutual understanding of the strengths and weaknesses of their case and their individual underlying interests. In this example, the lawyer had spent a considerable amount of time and money on the case; however, upon learning that opposing counsel had a strong defense, her interests switched from wanting to obtain a huge settlement or jury verdict for her client to a desire to recoup her costs and time, and hopefully still turn a profit. The client’s interests were more complicated and revolved around his history and expectations (as discussed above). We discussed these interests together so both the client and the lawyer could have a mutual understanding of their needs and desires.
From an ethical perspective, there are many ways to arrive at the “right” outcome. One mediator might practice simple shuttle diplomacy and communicate demands and offers until both parties reach impasse or settlement. Another mediator might be more evaluative, discussing only the strengths and weaknesses of each element of the case. Yet another mediator might dig at everyone’s underlying interests, asking all parties to analyze and quantify those interests, literally helping the parties put a price on their own “happiness.” This mediation was complicated enough to require all three methods.
Commercial mediators use finesse, nuanced communication skills and careful attention to process, especially when dealing with high expectations or client control issues. Lawyers and their clients need to come to mediation prepared to discuss the strengths and weaknesses of their case, as well as settlement demands and offers, but they must also be ready and willing to discuss more difficult issues: what is driving them emotionally, personally and financially. Examining these underlying interests helps align expectations, even when expectations at the end of mediation are vastly different from the beginning. A skilled mediator can help all parties understand and overcome great expectations, achieving resolution in cases that might have gone to trial otherwise.
By Terri LubaroffRead More
You have the most terrible nightmare…
You show up for trial in your underwear, completely unprepared to argue your case. The judge asks you a very pointed question, and if you give the wrong answer, your case is dead. You start to sweat because you don’t even know the answer. All you can do is stammer and stutter until the embarrassment becomes too much and you run out of the courtroom in shame.
Many litigators have this nightmare before a big trial. It is a reminder that preparation is paramount. But do lawyers ever have the same nightmare about mediation?
In mediation, the best lawyers know that being fully prepared will give their case the best chance of success. Because mediation is just as much about timing, strategy, information gathering and client management as it is about negotiation, preparation takes time, research and effort.
Because mediation is not a “get out of trial free” card or a license to be lazy, below are some helpful “best practices” for preparing your case for an effective mediation.
1.) INFORMATION EXCHANGE
The first step in preparing your case for mediation is to exchange as much information as you can with the opposing party prior to mediation. Your goal is to make certain each party has enough information to make fully informed decisions regarding settlement. Because a large percentage of cases fail to settle due to crucial missing information, this is one of the most important elements of preparing your case.
Exchanging information with opposing counsel can cost time and money. If you are working within a budget, discuss with opposing counsel the idea of limiting discovery to what is absolutely necessary to facilitate settlement. Keep in mind that some cases benefit from extensive discovery, while others do well with more limited discovery. Know your case well enough to know which category into which yours fits.
One month prior to mediation, call opposing counsel and ask what information they still need in order to ensure a productive settlement discussion. Also consider sending a formal demand letter at this juncture, or if you’re defense, ask for one from the plaintiff so you can work with your clients to formulate a well thought out response.
2.) FILE REVIEW
The best lawyers prepare for mediation with the same thoroughness that one prepares for trial. Although it can be demanding and time consuming, you must remember that very few cases actually make it to trial; thus, mediation may be your client’s only “day in court.”
Review your file from top to bottom, inside and out. Take time to reread contracts, medical records, deposition transcripts, key documents and interrogatory answers. Because it is impossible to remember all the important details, make notes as you review. Be sure to note every little victory, concession, evasion and retort, as well as any holes you find in your case. You can also use this time to write down what needs to be included in your mediation brief.
3.) CASE ANALYSIS
As you are reviewing your file, you should be analyzing the strengths and weaknesses of your case. Make a written list. Keep in mind that no case is perfect. You need to take the time to realistically identify and develop strategies to deal with potential problems.
Think of how to approach your strengths and weaknesses in the context of a negotiation. Doing this at least 30 days prior to mediation will give you time to research unclear case law, develop counter arguments, and work with your client to determine if further information is needed.
Also take the time to analyze the strengths and weaknesses of your opponent’s case. Put yourself in opposing counsel’s shoes and try to anticipate their moves, their defenses and weaknesses. Anticipate opposing counsel’s arguments, and have answers and counter-arguments ready. Remember that forming persuasive answers to tough questions is more difficult under pressure at the table. If you have thoroughly analyzed your case, not much will surprise you or throw you off your game.
4.) ESTABLISH A RANGE FOR THE VALUE OF YOUR CASE
You can’t negotiate a settlement if you don’t understand the true value of your case. To do this, you must make an objective risk analysis and case valuation. First, perform jury verdict research. Compare your case to other similar cases. Discount outliers and be realistic about unknown variables, such as how your witnesses will perform under the pressure of cross examination or how well your facts support your cause of action. Second, perform a thorough risk analysis. Establish a protocol of how to change your evaluation based on each identified risk. Consider creating a list of the assumptions and calculations that underlie your value decision. This will be helpful as you begin negotiation. If risks are brought forth by opposing counsel, you will immediately know how to discount your demand or raise your offers based on those risks. Third, apply what you’ve learned above within your damages analysis. Come up with a number you feel represents the overall damages of the case, and then discount BACKWARDS for liability, costs, present value and trial uncertainties, such as how your particular judge might apply the law, which facts are likely or unlikely to come in, how well the experts testify, how well the other side’s lawyer tries the case and how the jury will react to your client’s countenance.
Experienced lawyers know in their gut what their case is worth. They have years of experience from which to draw, but for lawyers just starting out, they might find it helpful to consult with a more seasoned attorney to develop a reasonable settlement value. For any lawyer, it is often helpful to get a second opinion on case valuation because sometimes it is hard to see the forest through the trees. Remember that as an advocate, you might have a more optimistic view of your client’s damages than what is possible in reality.
To properly evaluate your case, you also need to determine your client’s goals. Are they interested in “winning” or are they willing to compromise? Does your client need anything other than money, such as an apology or a letter of recommendation? These factors might not add directly to your monetary valuation, but their intrinsic value should not be ignored. For example, how much would your client be willing to give up in financial gain if she gets a letter of recommendation in return? You need to know.
Finally, you must determine the settlement value of your case versus its litigation value. These numbers may be vastly different, and will depend on many factors. Some factors to consider include the percentage or cost of your fee, expert costs, whether a CCP 998 might be proffered, and how desperate your client is for an immediate payout rather than waiting for trial. Often, a settlement value for $100,000 today is more than your client would get a year from now after a $200,000 jury verdict. Run the numbers so you can rely on hard facts, and make sure you have a gentle method of letting your client know about these realities.
5.) DEVELOP A NEGOTIATING PLAN
Once you understand how much your case is worth, you must develop a negotiation plan. To do this, determine what you could win on your “best day in court,” as well as your “walk away” number. Your “best day in court” number represents what your case is worth “soaking wet.” This is the best possible scenario your client might obtain. Your “walk away” number can only be determined by you and your client, and it should represent the number that makes your decision to settle or not to settle very easy. In other words, if you have to debate about whether to take the number on the table, it’s probably a number you should seriously consider. If you don’t even have to think about it, then it’s an easy decision. The easy decision is the “walk away” number. In determining this number, be sure to factor in whether your client needs money now or can wait, whether the same number will net your client the same amount at trial and whether there are other costs to consider, such as any time your client might have to take off work for a lengthy trial or risks of a large judgment.
Make a plan for your negotiation. Leave yourself enough wiggle room for unexpected responses from opposing counsel, but be careful that your numbers are grounded in reality. One of the worst mistakes lawyers make in a negotiation is to ask for the moon when their clients are only entitled to a piece of cheese. Be sure you can justify your demands or offers, as this will earn you respect and credibility with both the mediator and opposing counsel.
Finally, don’t back yourself into any corners. Negotiation is about compromise and problem solving. If you come out swinging, you might overplay your hand, leaving you little room to move. Remember that mediation is about compromise; but in compromising, many of the most successful negotiations end with every side walking away equally unhappy about what they gave up, but equally happy about what they accomplished.
6.) MEET WITH YOUR CLIENT AND REACH AGREEMENT ON YOUR GOAL.
Evaluating the case for a legal perspective is, of course, only half the battle. Equally important is determining what your client needs and wants. Meet early and often with your client to help make this determination, and make sure your client understands that mediation can be a creative process, allowing for creative solutions.
Check in with your client early and often about their needs, goals, thought and feelings. Determine whether they need anything other than the declared relief in the lawsuit. This will help with client control issues that tend to pop up later in the process.
In fact, client control is a big reason mediations fail to result in settlement. Often, the client’s lawyer failed to adequately prepare their client for the ups and downs of the negotiation process, or the lawyer over-evaluated the case from the outset. To prevent this, you should explain to your client the strengths and weaknesses of their cause of action before mediation. Educate them about how you evaluate the case and about how the legal process and the mediation process works – and how they are different. Include your client in developing the negotiating plan as much as you can. Working with your client before mediation to arrive at an agreement about how to resolve the lawsuit might prevent client control issues in the future.
7.) ENSURE ALL DECISION-MAKERS WILL BE PRESENT
When scheduling your mediation, ensure that all relevant decision-makers will be present. If scheduling the mediation months in advance, confirm with the decision-makers at 30 days, 14 days, and 7 days prior to the mediation. Use these confirmations as opportunities to exchange further information and any initial demands or offers. Don’t waste time and money by not ensuring they’ll be there.
8.) PREPARE A MEDIATION BRIEF
Many mediators ask for briefs so they can hit the ground running and not waste valuable negotiation time getting up to speed. The act of writing the mediation brief itself will help you prepare for mediation.
Consider whether you want to submit a confidential brief to the mediator alone, or if it would be helpful to submit a brief to all parties. There are advantages to each. A confidential brief allows you to candidly discuss the strengths and weaknesses of your case with the mediator, who will need this information to determine how to best position your case for negotiation. On the other hand, a brief sent to all parties can quickly narrow down issues and present a starting point for negotiations, allowing all parties to start on the same page.
As you write your brief, be aware of your audience. A brief that calls the opposing party a liar and a cheat is not going to position your case for resolution; rather it will inflame passion and cause the other side to dig into their position. However, a brief that succinctly and professionally outlines your cause of action and why you feel your client will prevail might diffuse an otherwise contentious situation. You can use your mediation brief as an opening salvo to commence negotiation, and if exchanged between parties, its tone may set the tone for the entire negotiation.
9.) CALL THE MEDIATOR TO DISCUSS WHAT YOU CAN’T PUT IN A BRIEF.
You never know what information might help the mediator settle the case. It is especially important to speak to the mediator prior to the mediation for this reason.
My favorite example was when a plaintiff’s attorney called me to mediate a very contentious intentional tort case between a huge military guy and a short, nerdy businessman. The military guy got the snot beat out of him by the nerd. He filed suit, wanting to make the nerd pay for the humiliation he endured.
Unfortunately, military guy’s lawyer was convinced that a jury would never get past the picture of the jock getting beat up by the nerd as highly unlikely. He needed to settle the case, but his client was adamant about taking it to trial. I asked the attorney why I was chosen as the mediator, and he told me that military guy doesn’t love or respect anyone in the world except for his mother. It just so happened that I looked like a young version of his mother. He was sure if anyone could settle the case, I could… not because of my skill or knowledge, but because of who I looked like. This was valuable information and caused me to dress, behave and speak to the plaintiff differently than I might have in the ordinary course of business. I settled that case in 90 minutes.
There is a lot you can’t put in your brief. That doesn’t mean it’s not important information to give to your mediator. The week before the mediation, call you mediator and tell them everything they need to know about your client, your case, opposing counsel, the opposing client and their case, and your true concerns about how the mediation might or might not go. Let your mediator know about the intangibles. These are the currency with which the mediator will be able to work towards settlement. Remember that your mediator’s purpose is to settle cases. The more information they have about the problems, the more likely they are to solve them.
Entire books could be written about preparing your case most effectively for mediation. Although the above steps seem simple and obvious, many lawyers fail to follow them, thinking mediation is a free pass from the hard work of trial. Remember that a successful mediation requires just as much preparation as trial, even if the preparation is wholly different.
I hope these simple tips position you and your case for success in your next mediation.
By Terri LubaroffRead More
“I want to make him pay,” said the defendant.
“Why?” I asked, “What makes you think that the plaintiff – the one claiming to be wronged here – needs to pay you rather than the other way around?”
“Because if I pay, that means he wins and I lose. I don’t like to lose,” the defendant says earnestly.
I take a deep breath, knowing what has to be said next. “But you admitted liability.”
The defendant looks at me like I’m an idiot. “Yeah, but that doesn’t mean I want to pay.”
Of course it doesn’t.
Who doesn’t love winning? Winning is a rush… to strive for perfection and be the best… to finally be told you’re right… to come in first… to close an amazing deal. When we win, the influx of endorphins in our brain is as powerful as any drug – we crave it, we want it, we need it.
What about the concept of “winning” in a lawsuit?
At trial, one party must “win” while the other must necessarily “lose.” Unfortunately, the outcome is never certain. People engaged in litigation with an eye on trial are consummate gamblers, betting the farm on an unpredictable outcome. Even with a rock-solid case, there is still risk; no matter how skilled the lawyers and how beneficial the evidence, anything can happen. A wronged party can lose and a party in the wrong can win. That’s why most cases settle before ever getting to trial. The risks of the “win-lose” scenario are just too great.
So what happened in the case above?
The plaintiff, a producer, writer and actor, alleged breach of contract over the underlying rights to a television series he co-produced with his ex-fiancé. He claimed she stole the project out from under him, so he sued her to clarify his rights and enjoin her from further exploitation of the series. Oh, and because his ex is such an awful cheating liar, he also sued her for defamation and fraud. He has a list of wrongs and promises to pile them on if his ex refuses to settle. Declining to meet with her in person, he gives me a list of increasingly angry messages directed her way.
Defendant has her own litany of wrongs, claiming her ex filed a “revenge lawsuit.” She explains:
“He thinks I was cheating on him, but I wasn’t. This is just another example of how manipulative he is. He’s just jealous because I was the one who actually got the project made. Because he brings nothing to the table, he’ll be kicked off the project and end up with jack squat. Did I steal the rights out from under him? Yes. Did I tell everyone that he stole my camera equipment? Yes. Did I tell his financier that we had a written agreement between us when we didn’t? Yes, damn right I did. I did all of that. Because he deserved it. I am smarter than him and more well-liked than him and I am going to win.”
The problem is that she might very well lose. We discuss the strengths of his case and the strengths and weaknesses of her defenses, and I listen to her rant for a while more. Finally, I ask her what “winning” will get her. She has some pie in the sky notions, but that’s ok… we all do. So then I ask her what losing will get her. That stops her in her tracks.
“What do you mean?” She asks.
“If you lose this lawsuit, what will happen?” I clarify, “Let’s talk it out from the moment in court that you lose. What happens next?”
She turns to her lawyer, shrugging. Her lawyer raises his eyebrows at me. He’s not sure where I am going with this, but he has told me privately that he believes she needs to settle, so he is willing to play along. I rip off a couple of pieces of paper and give them to the lawyer so he can write a list of what will happen if she loses. He writes the list as he explains…
Twenty minutes later, with an extensive list of fees, costs and consequences, she is pale as a ghost. “Can any of this really happen?” she asks.
She just got a necessary reality check. Her need to “win” was suddenly replaced with a need to protect herself. Her emotional hubris evaporated when faced with the stark reality of what might happen if she loses.
That’s why I mediate. In litigation, everyone is at risk. In mediation, we don’t have to focus on win-lose scenarios; instead, parties can agree to any settlement that meets their needs, allowing for out-of-the-box ideas that can benefit everyone. There doesn’t have to be a winner or a loser.
In this case, I was able to identify what was really driving both parties. It wasn’t money, but rather a need to be heard and a need for closure. Once both parties realized the underlying reason for the lawsuit, the tone of the conversation changed from “win-lose” to “moving on.”
As it turns out, neither party cared about money… it was all about credit, respect and the potential to share in what might someday be a profitable project. I was able to settle the case with no money changing hands, which suited both parties just fine. We also clarified the underlying rights and royalty shares to the TV series, formed a new entity to handle the production, solidified creative credits and promised confidentiality. The best part was that the parties, who were spewing vile vitriol at each other in the beginning of the mediation, actually wished each other well at the end.
Now that sounds like a “win” for everyone.
By Terri LubaroffRead More