Using Diplomacy in Negotiation

In my humble opinion, neither missiles nor trials are effective at getting the message across to an unwilling, unreceptive party.  In these troubling times in the Ukraine and the Middle East, I find myself returning to my undergraduate training in International Relations at Pomona College, where we students of diplomacy were advised to choose our negotiating partners wisely by picking the person whom we most trusted to carry the message of our people or our cause with the most respect, tact and reserve, but forcefully and convincingly.

During mediations, at times when the emotions are high and the level of misunderstanding and distrust even higher, I find myself resorting to these old diplomatic lessons.  I straighten my scarf (preferably an expensive one from Paris, France), I turn up the highest polite etiquette (addressing everyone by Mr. or Mrs. and standing when they enter or leave the room).  I breathe deeply before I say anything, carefully considering the way each message is delivered and received.  In short, sometimes mediation calls for the same formality as diplomacy.  Once the parties have selected a trusted third party neutral, they are more apt to receive her message with open-mindedness and even gratitude for leading the way out of conflict.  I wish the Israeli's and Palestinians could agree upon a trusted third party who might be able to speak so each could listen and listen, so each could speak.  Maybe then there would be some acceptable framework for dialogue and creative solutions.

In what ways do you summon diplomacy to achieve better settlement results in litigated cases?

Dancing on One Foot: The Dynamics of Negotiation

There is a certain rhythm that develops with every negotiation.  Sometimes, for example, I find myself physically "leaning in" towards the party with whom I'm working.  Sometimes, when I think I need a position of authority, I stand as I enter a room, whereas at other times I invite the parties to sit alongside me, suggesting by my position that "this may take awhile".  Even the parlaying of offers and counter-offers can be fast or slow, laced with a lengthy explanation or just conveyed through numbers.
Some of you may know that a couple of weeks ago I stumbled and broke my right foot.  This meant that the last 4 mediations which I have conducted have been completely different than any that have preceded them.  Unable to walk or stand on two legs, I have stayed seated, at the head of a conference table and invited the parties to come back and forth to me for every discussion. I have spent four full days with this new experiment and here are my reflections.
Last week, it was extremely difficult as I felt I had little control over the negotiations.  I was unable to casually enter either room or whisper my ideas in the hallways as I may have in a "normal mediation".   I was dependent upon other mediators to usher folks in and out or, in one case, asked the counsel to advise one another when it was "their turn".  But this week, assisted by a couple of well-trained Southern California Mediation Association's "mentees", my mediations went much more smoothly.  Now, when I stand in place (assisted with the walkers, crutch or mentee), the disputants know that I am "in command",  and when I wheel myself to their room for a final "closing" discussion on my new knee scooter, they are so appreciative of my effort that they listen attentively and are much more deferential than when my two legs dance over under ordinary circumstances.  I have learned to accommodate to the rhythm as necessary, and more importantly to stay in tune with the rhythm of the music in new and interesting ways.
I am sure there are many lessons which I will learn in this summer of non-weight bearing, but in the dance of negotiation, I have learned that it is possible to use the change in dynamics to effectively move the parties towards a resolution, even on one foot.
How do you use the physical movements in your mediation to achieve settlement?

Staying the Course: Follow Up Care in Mediation

Last week I was on vacation in Lake Tahoe.  While there, I was contacted by one of the lawyers who had come before me in a mediation last Spring.  Now,     some of the pleadings had been amended and new parties had been added.  Not surprisingly, his client had expressed interest in revisiting the negotiations which broke down at a time when the numbers being advanced did not seem 'worth it".  In between my own kayaking and hiking, I made the time to follow up and re-engage both parties in a course leading to settlement and steered them off of their current course towards trial.

In another case, there were numerous decision-makers who had not been present for the full day's mediation session and could not appreciate the effort or logic to the Plaintiff's "last, best and final offer" which came at the day's end.  For them, I spent several hours preparing a written, confidential "mediator's analysis" memo which they could share with the others and use as a basis to discuss their response after they all had a full opportunity to review what I had learned about the facts, the legal liability and the damage claims.  They agreed to consider this and respond to the Plaintiff's demand in a couple of weeks.

For those of us with a busy mediation practice, it's not easy to "stay the course" in this way, but I've been told it is what distinguishes the true professionals from the novices.  Luckily, as I've gained more experience, I find that most cases do settle in a single day, so my portfolio of "open cases" and my risk of being interrupted while on vacation grows smaller!
What do you do to "stay the course" where the mediation doesn't result in a settlement initially?

The Lawyer-Whisperer

Occasionally, facts come out in a mediation that are entirely irrelevant to the dispute at hand, yet appear to be true obstacles to a successful resolution of it.  Recently, for example, I mediated a pre-litigation employment dispute in which the employer company had been sold after the employee's termination.  That part was well known to both me and the opposing counsel.  What was not known to any of the participants in the mediation is whether the law firm handling the defense of the matter would be able to maintain the Corporation as a client once "NewCo." took over.  This meant that the Defense lawyer wanted to settle the case, but wanted to do so at an attractive enough rate that his work might gain the attention of the potential new client as the transition took place.
In an interview with the CEO of Pepsi on the news last week, Indra Nooyi declared that "women can't have it all", and yet I have also delicately scheduled arbitrations and motions, and settled cases to avoid a trial which would otherwise occur during a still-secretly planned maternity leave by many women lawyers.  As Nooyi suggests, many women professionals still feel the need to keep secret from their opposing counsel or others the plan to take a 3 or 4 month leave of absence, lest they take advantage of their "delicate state" (or absence).  Indeed, many agree with Nooyi that women professionals simply "can't have it all".
Practicing law, for most of us, is both a life-long career and a business.  Both factors play in over the span of life's milestones and business and economic challenges.  When they arise, I summon all of my diplomatic skills to respectfully confide (with permission of course) in the opposing attorney as to the little lawyer-secrets that have presented obstacles to resolution.  Usually, once I take them into my confidence, the other side rises to a respectful and more understanding place and agrees to a settlement that is attainable under whatever circumstances have declared themselves, rather than hold out for something that is only a potential in the future.
How do you handle lawyer-secrets that go beyond the facts of the dispute at hand?

Preparing for the Unexpected

On this eve of American Independence Day, I am reminded that in mediation, we always need to be prepared for the unexpected.  Yesterday, fireworks nearly erupted after a full day's mediation when, as the Defense lawyer began drafting the settlement agreement, his client raised (for the very first time) that he would be unable to pay any of the negotiated sum until after the Christmas holiday brought much needed revenue back into his business.  While this made for a colorful backdrop to the easy negotiations that had transpired up until that moment, it also threatened to derail the entire process.  At times like these, I find the best approach is to take a few steps away from the "fire" and pivot towards giving some space for creative solutions.  In this case, the lawyer and I were able to analyze that this "debt" would take priority over others if the Plaintiff's counsel went to trial and got an adverse verdict. Periodic payments made to Plaintiff would be roughly equivalent to the monthly invoices that the Defense counsel would be sending in the same period of time.  At the same time, I tipped off the Plaintiff that there was "an issue" about how soon payments could be made--suggesting he may have to wait until year end.  That way, when Defendant figured out how he could make the full payments within 90 days, it didn't seem quite so shocking and the deal was done.  Like fireworks in the night's sky, some big, scary, fiery events will come out with a boom and then fizzle into the air again.
How do you handle the late-day fire works and surprises that come up when clients or lawyers erupt unexpectedly?
Wishing you all a wonderful, safe and sane 4th of July!