Previously on Law Tips: Sam Ardery provided his powerful insights into distinguishing the difference between mediation styles and strategies and making those conscious choices. It’s my pleasure to offer another example of Sam’s mediation know how.
Trust – If you don’t trust the mediator, then do not hire him or her!
All good mediators know that they are tools and everyone is trying at some point to manipulate or game them. There is nothing wrong with that, but be careful because there is a difference between not telling the mediator something and telling the mediator something that is untrue.
The mediator is there to help you and any other parties find out if there is a way to resolve a conflict not yet resolved among the parties. If you make absolute statements about what you will or will not do and allow the mediator to carry that message to the other room then you may lose a tremendous opportunity to see if the case can settle.
You do not want the mediator to give up, and most good ones will not. However, if a good mediator is faced with two good lawyers who take extreme and immovable positions, then it is not just the mediator’s job to see if those positions can be moved or if there are interests that might be met in spite of the positions. Sometimes a seemingly fixed pie can be made larger or better used.
Who gets the lemon?
I love the story about the two boys who find only one lemon in the house and they both want it. The mother, thinking that she is being wise, cuts it in two and gives each boy half. Upon further investigation, however, she learns that one boy wants the juice for lemonade and the other wants the rind for a pie. Neither boy got as good a result as he could have had anyone in the equation done more exploration beyond a simple and perhaps even obvious solution.
Speaking of obvious
There is a great book called Everything is Obvious* once you know the answer. It was written by a physicist and sociologist whose first chapter is entitled “The Myth of Common Sense.” He has many interesting insights, but he points out two old sayings that we regularly accept about human behavior, even though they’re mutually exclusive:
- Opposites attract; and
- Birds of a feather stick together.
Both of these are sometimes true, but we use them selectively to point out (after the fact) a behavior that already exists. Then we make the mistake of using either cliche to predict the future when it has absolutely no predictive value beyond chance occurrence.
So…To effectively use a mediator, I would suggest the following:
- Tell the mediator what is important to you;
- Arm the mediator with verifiable information that supports your position or interest;
- Begin with a demand or offer that bears some relationship to rationality in the market in which you are dealing
- for instance, if the market value of a Ford F150 pick up truck is $25,000 to $35,000, you gain little credibility in asking $100,000 just because you can;
- Conversely, if you offer $5,000 just because the opening demand was $100,000 you get into a useless death spiral;
- My experience is that the first party who acts like a grownup has the best chance of meeting or approaching their goals;
- Make sure that you have provided the other side all the information that should be relevant to make decisions and that you have given them enough time to legitimately evaluate it;
- Do not insult the other side in your opening;
- If you have unpalatable information to deliver, explain why it matters, not why it is true;
- For instance in medical records, you might be more effective in telling the other side that you do not know what happened in their treatment, but that the medical records suggest x,y or z and your experience is that x,y, and z have an impact on injuries;
- This makes it less personal and allows the mediator to use it more persuasively.
- Frame all the issues early so that you do not negotiate three things as if that is all there is and then surprise everyone with a fourth issue before you are done;
- Be clear about what your client will and will not do and the terms – particularly as things move toward a resolution;
- If you find yourself particularly disturbed about the direction something is going, be candid with the mediator and be willing to hear a candid response;
- Kick the mediator out to talk privately with your client if you need to;
- Make it your goal to learn what the other side might do even if you think it might be rejected and make it your goal for the other side to know what your client will do even if it will be rejected; you can do this by allowing the mediator to indirectly explore possibilities without presenting them as demands or offers;
- If you are stuck consider whether there is value in asking the mediator for suggestions as to either substance or process;
- Remember that part of the mediator’s job is to protect parties from themselves, including whether one side might walk out with a particular proposal; however, be clear in asking the mediator why he or she thinks that is the case and where he or she sees that as a possibility or a likelihood;
- Be willing to consider and brainstorm about creative options without giving the mediator permission to carry them to the other side;
- Be very clear about what the mediator may and may not share with the other side;
- Be clear about the mediator’s default position on confidentiality – is it “I won’t share without permission,” or “I will presume that I can share unless you tell me not to.”
- If you have questions, ask.
Many thanks to Sam Ardery for raising important issues for everyone involved in a mediation. You may register for his CLE presentation during: Representing A Client In The Mediation of A Personal Injury Case.
About our Law Tips faculty participant:
Samuel Ardery, Partner, Bunger & Robertson, Bloomington, Indiana. Sam is a litigator, mediator, arbitrator, facilitator and teacher, who has been involved in more than 4,000 cases around the country over a 27 year career. His primary practice areas are civil litigation, commercial litigation, mediation, arbitration, mediation and negotiation training. He has been named to Best Lawyers In America, one of the Top 50 Lawyers In Indiana and an Indiana Super Lawyer in consecutive years. He has also received the Outstanding Adjunct Teaching Award at the Indiana University Maurer School of Law, where he is an adjunct faculty member.
About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.
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