Mediator’s Proposals: God’s Gift to Mediation, or a Betrayal?

By Martin Quinn

Martin Quinn

Martin Quinn

Once upon a time some 35 years ago, mediation was talked about in the United States as a tool to cure dissatisfactions with the civil justice system.  The great early teachers and scholars of mediation — Frank Sanders, Christopher Moore, Leonard Riskin and others — envisioned a process focused on party autonomy that would allow disputants not merely to resolve an immediate legal problem, but to reorient their personal or business relationships into a productive path.  Early mediations were usually conducted without counsel in a highly facilitative model in which the parties and the mediator remained together for all or most of the session.

This model in legal mediations has, of course, largely given way as attorneys entered, and came to dominate, the process.  Legal mediation today relies heavily on private caucusing and has largely abandoned any substantive joint session.  Mediators are likely to be highly directive, if not explicitly evaluative, in pushing the parties to an agreement.  Party autonomy has receded, while the power of attorneys and the mediator to influence the result has expanded.  One result of this evolution is the growing use of the mediator’s proposal to bring about closure.

A frequently employed tactic, the mediator’s proposal, works like this: The parties have exhausted their ability to negotiate further.  Neither side can in good conscience accept further compromises.  But they are close enough to a deal that both sides appreciate that a final effort makes sense.  Assume plaintiff is demanding $250,000, and defendant has offered $190,000.  The mediator proposes a dollar number (or more detailed terms) between the two positions, based not on a legal evaluation of the case but on the mediator’s judgment as to a number that both sides are most likely to accept.  A mediator may tell the parties that her proposal has nothing to do with Truth and Justice, but is the number her stomach tells her is most likely to draw two “Yes” responses.  Each side may say “Yes” or “No.”  If there are two “yes” responses, there is a settlement.  If there is a “Yes” and a “No” or two “No’s,” the mediator says only that there is no settlement — without revealing the responses of either side.  Therefore, each side knows that it may respond “Yes” secure in the knowledge that its compromise will never be disclosed unless there is a deal.

A busy legal mediator reports that he now uses a mediator’s proposal in about two-thirds of his cases.  Why?  First, it works.  Neurological research teaches that reactive devaluation – the tendency to reject any proposal from an opponent – diminishes greatly when a neutral proposes the compromise.  Second, attorneys with mediation experience have come to expect a mediator’s proposal and negotiate accordingly:  intentionally leaving bargaining room open knowing that the mediator will propose the one final compromise.  Thus cases that would likely have settled through party negotiation alone now arrive at impasse as each side anticipates a mediator’s proposal.  Third, a mediator’s proposal allows the party representatives to feel — and to tell their bosses — that they held firm but the mediator “made them do it.”

For more on Mr. Quinn’s discussion on Mediator’s Proposals, please read the full article from Law.com by clicking here.

The Small Big: Small Changes That Spark Big Influence

Richard Birke

Richard Birke

Written by Steve J. Martin, Noah J. Goldstein and Robert B. Cialdini

Reviewed  by Richard Birke

Nothing is more important to negotiation success than getting the other side to say yes.  The formal study of this critical aspect of negotiation is called “persuasion science,” and no expert is more accomplished or recognized in this endeavor than Robert Cialdini, professor emeritus of psychology at Arizona State University.

Influence described six principles that accounted for the vast percentage of successful attempts to persuade.  These principles, briefly, are as follows:

The Small Big:  Small Changes That Spark Big Influence

The Small Big: Small Changes That Spark Big Influence

Reciprocation of Concessions:  People feel obliged to reciprocate for acts of goodwill, even if the act produces no value and was not requested or wanted.

Authority:  Perceived authority causes changes in decision-making, even when the authority is more imagined than real.

Scarcity or Deadlines:  Fleeting offers or disappearing commodities seem more valuable than if they were plentiful or available on request.

Social Proof:  If a choice appears to be endorsed by a large number of strangers, a negotiator is likely make the same choice.

Liking:  People say yes more to people they like.

Commitment and Consistency:  People tend to stay consistent with prior commitments they have made, even if those commitments were made without any deliberation.

The stories and lessons from Influence are entertaining, important and fairly short.  One quick read will demonstrate clearly why this book is so well-regarded. Each example forms the basis for a chapter in the book, and for the reader with limited time, the book is perfect.  It really lives up to its title—small chapters with BIG lessons.

Here are two of my favorite tips and lessons from The Small Big, even further shortened:

Simply adding the phrase “the majority of people in your postal code pay their taxes on time” resulted in the British government’s hiking its collection rate of delinquent taxes from 57 percent to 86 percent.  The cost of the change was practically zero (the biggest part was probably Cialdini’s fee), and the net increase was 270 million pounds annually.  This is an application of the principle of social proof, and the chapter offers clear advice for anyone seeking to collect on monies owed.

Requesting that a patient write down their own appointment information (rather than having the receptionist do it) resulted in an 18 percent reduction in the number of people who failed to show up for their next appointment.  In a demonstration of the principle of commitment and consistency, the authors teach us how to prevent missed appointments from creating large costs.  The estimate of the cost of missed appointments in the U.K. is more than a billion dollars a year.  This small change saves a nation $180 million and offers a lesson for any lawyer, restaurant or businessperson who suffers when someone blows off a meeting or appointment.

There are so many more great stories and lessons that anyone interested in negotiating their way to a yes really owes it to themselves and their clients to read The Small Big.  It will surely point to some small ways for you to make a big difference in the success of your negotiations.

 

The Key “Moral” from Stories Mediators Tell

Wayne Brazil

Hon. Wayne D. Brazil (Ret.)

by Hon. Wayne D. Brazil (Ret.)

The theme of the 2014 Mediation Week was inspired by Stories Mediators Tell, a moving and illuminating collection of stories about the often dramatic facts of mediation life that Editors Eric R. Galton and Leila P. Love coaxed from a diverse group of experienced mediators to share with the rest of us (ABA Section of Dispute Resolution, 2012).

The ABA Mediation Week initiative is a celebration of the strides made in institutionalizing mediation as one of several appropriate dispute resolution processes. The 2014 ABA Mediation Week was held October 12-18.

Risk is one of the pivots on which many of these stories turn.  But it is not the kind of risk on which we (as mediators in litigated cases) are accustomed to focusing: risk of loss. Stories doesn’t hammer on risk aversion, and doesn’t teach techniques for capitalizing on it in order to generate ‘movement’ toward a deal.

Instead, the risk that imperils success in these stories is the risk that we will take ourselves too seriously, exaggerate our role and responsibility, and thereby disable ourselves from capitalizing on the skills, understandings and other “resources of person” that reside in all the other players in a mediation drama.

Stories reminds us, graphically, that it is the parties who are supposed to be at the center of the process. It also demonstrates that it is the parties who often can be the sources of the most valuable and, sometimes, crucial contributions to the viability of the process. It is the parties, after all, who best understand themselves. They know what they think, feel and need. And sometimes it is the parties who best understand one another – who most accurately identify the agendas, needs, and goals that the other side has set for itself.

How can we help the parties or earn and deserve their confidence if we do not ‘pause in their places’ long enough to learn these things — if we are so obsessed with our own ‘orchestration of process’ that we hustle right past these significances?

These are not just philosophic issues. They implicate our ability to do our job.  We cannot ‘speak to’ a party without first learning his language, the language that will open him to hearing us.  And we cannot help a party ‘come to terms’ unless she understands that we understand her circumstances and needs – and have given them full play in our efforts to secure the most attractive proposals possible from the other side.

In several mediations in my recent past, it has been parties or their counsel who have suggested the kind of terms that would be most attractive to their opponent.  Or who have given me the best advice about sensitivities to acknowledge or to avoid when working with others.  Among many other lessons, Stories teaches us how much insight, intelligence and wisdom often resides in the other minds in our mediations – and how it is only by actively encouraging contributions from all of those minds that we can feel we are doing the best possible job.

The Duty to Preserve Electronically Stored Information

Viggo Boserup, Esq.

Viggo Boserup, Esq.

by Viggo Boserup, Esq.

As soon as a party is served with a summons and complaint and sometimes sooner, there arises a duty to preserve evidence, including electronically stored information (ESI). This duty requires both counsel and clients to comply with any litigation hold and monitor ongoing compliance efforts.

Because spoliation – withholding or hiding evidence – goes to the heart of the litigation process and is not unlike perjury, failing to comply with the duty to preserve has serious consequences. Judges have wide discretion in assessing penalties and may impose fines or attorneys’ fees. They may also give a spoliation inference instruction to a jury, as Judge Scheindlin did in Zubulake v. UBS Warburg: “[i]f you find that [defendant] could have produced this evidence, and that the evidence was within its control, and that the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would have been unfavorable to [defendant].” Many of Judge Scheindlin’s holdings in Zubulakehave been cited in dozens of other cases and form the foundation for much of the Federal Rules of Civil Procedure adopted in 2006.

Due to the serious consequences of spoliation, counsel and their clients must ensure every effort is made to comply with the duty to preserve.

When Does The Preservation Obligation Arise?

The duty to preserve arises when there is a reasonable anticipation of litigation, such as upon service of a summons, complaint, or preservation demand letter. In Zubulake, supra, the obligation actually arose much earlier. There the court held that the obligation arose when the plaintiff filed her EEOC complaint 2 months prior to even being terminated. The court noted further that the obligation was probably triggered even four months earlier because “almost everyone associated with Zubulake recognized the possibility that she might sue.” Zubulake v. UBS Warburg LLC. Given the wide discretion demonstrated in Zubulake and other cases citing it, counsel are advised to note the trend in the applicable jurisdiction.

To learn more about preserving electronically stored information, please read the full article from Law.com by clicking here.