Friday, March 28, 2014

How do you Get an Honest Evaluation of Liability?

One of the most valuable reasons to have private caucuses before bargaining begins in mediation is to ferret out how strongly each lawyer feels about their client's case.  These are discussions that are rarely included in the legal briefs.  A friend and awesome mediator, Gig Kyriacou, says he asks each side to anticipate the other's strongest points.  In doing that, he is able to learn early on what each side perceives their weakest point to be.
I find that most lawyers have carefully and deliberately evaluated their chances of success at trial, but have never communicated their weak points to their clients and certainly never would concede them to the opposing counsel.  Enter the mediator's world!  How do you get an honest evaluation from the lawyers in mediation or settlement discussions?

Friday, March 21, 2014

Keeping the Mediator from Making Assumptions about the Parties

This Saint Patrick's Day I had a good reminder that a mediator should never make assumptions about matters such as culture, experience or sophistication of the parties before them.  The case was brought by a Japanese man who had sued his former employer, an American company, for wrongful termination.
The Company's representative, a jolly Irish gentleman, was respectful of the process and greeted the Plaintiff warmly at the outset of the hearing.  At the end, I said to the Defendant that I thought it unfortunate, but that the genesis of the conflict appeared to be a breakdown in communications at the workplace, as so many employment matters are.
It was at that point that the Irish Defendant muttered something to me in perfect Japanese!  It turns out he had lived in Japan in his youth and had a great respect and deference for the people there, whom he considered family.  Had we not engaged in that banter, I would never have known that this individual had such a deep understanding of the Plaintiff's culture.  What was more, he had been a party himself to a published lawsuit many years ago, and knew the vagaries of litigation firsthand.
I was reminded of how important it is to enter every negotiation fresh and engage in basic conversation at the outset in an effort to ferret out the keys to helping the parties arrive at a mutually acceptable settlement to their disputes. How do you keep yourself from making assumptions about the parties?

Saturday, March 15, 2014

Friday, March 14, 2014

Is Distributive Bargaining Worthwhile when the Parties to a Negotiation are Hundreds of Thousands of Dollars Apart?

       I find that most of the cases that I mediate need a third party neutral because the two sides are evaluating both liability and damages very differently.  The mediator is the bridge to some better understanding.  But beyond the conceptual, how effective is it to conduct distributive bargaining by way of demand, offer, counter-offer and counter-demand when the parties start out with a demand of something like $1 million and an offer of $5,000.?

     My experience recently tells me that the simple acting of loosening up the parties towards movement, even if it's minimal, is useful to gain some momentum and narrow the chasm between the two sides.  In a hearing this week, the Plaintiff responded to that hypothetical $5000 offer with a drop of $100,000.  The clever defense lawyer moved up another $5000 and was surprised to get another $100,000 drop in exchange.  Though there was an obvious slowing at a certain point, the seemingly futile dance had begun, resulting in a mediator's proposal within a field that had been considerably narrowed against what would otherwise appear to be great odds.

Yes, I'd say showing up to the dance is only the first step.  After that, you actually have to get out onto the dance floor and take those first risky, uncertain steps before the rhythm of the music takes over.

Friday, March 7, 2014

How do you Handle the Self-Represented Litigant in Mediation?

This week, I had two hearings with unrepresented Plaintiffs.  These can be doubly vexing when the Lawyer representing the Defendant attempts to bully the Plaintiff by his/her superior knowledge of the process and the law.  Just as on the playground, I find that bullies do not usually win out in life, though they can certainly inflict some pain at the moment.  When these challenges come, I summon up as much emotional maturity as possible and make sure to be extra-deferential to the Plaintiff.  In other words, without taking the side of the "victim", the mediator or arbitrator can add some extra formalities to the process to ensure that the unrepresented litigant is afforded due process and that all of the rights he has are being fully asserted.
In one case, I was confronted by 48 witnesses who had been subpoenaed for an arbitration by an unrepresented Plaintiff.  The lawyer for the employer cried foul and asked that I exclude all of these witnesses as duplicative and unnecessary.  That was a bully tactic and backfired on her.  Instead, I spent another hour going through each one's proposed testimony before limiting the Plaintiff to one witness per category (for a total of 5).
Beware the Bully Lawyer in an attempt to Mediate a Litigated Dispute
Beware the Bully Lawyer in an attempt to Mediate a Litigated Dispute
Litigators know that some of the most dangerous and challenging cases can be those brought by a self-represented litigant who wants to avenge his wrongdoers in ways that may go well beyond the realm of the law.  But I say "bully beware":  the reason these are so dangerous is because mediators, arbitrators and even Judges will generally be extra deferential to the pro se litigant.
How do you handle negotiation or litigation against someone who is self-represented?