Joint Sessions: Are Lawyers Right to Hate Them?

By Martin Quinn

Martin Quinn

Martin Quinn

Mention holding a joint session and you are sure to provoke an argument between mediators and teachers of mediation on one side and lawyers who represent clients in mediations on the other.  That dichotomy is not wholly accurate because many mediators have also abandoned the use of joint sessions.  As a mediator of well over a thousand business-oriented lawsuits and disputes for 20 years and as a law school teacher of mediation practice for almost 10 years, I will offer a few  thoughts and some experience on this divisive topic.  I come with a bias:  The disputes I mediate usually involve parties who have a business or relationship that is in tatters but just may be extended or rekindled.  This is frequently true of employment, neighborhood or landlord-tenant cases; disputes among contracting parties or business competitors; partnership, stockholder and family quarrels; and healthcare business disputes.  To a certain extent, despite the parties’ immediate differences, going forward they usually need each other or at least will benefit from a civil relationship.  Therefore, this article is of less relevance for personal injury and other cases in which the parties have never met before and are unlikely ever to meet again.

As envisioned in the classic mediation training, the mediation commences with all participants—the mediator, lawyers and clients—together in a room.  Such a meeting, it is thought, promotes many objectives.  It allows the mediator to demonstrate their expertise with the process and their mastery of the relevant facts; to obtain consensus on an agenda for addressing the key issues; to explain confidentiality principles; to assess the competence, preparation and styles of the lawyers; to begin to understand each party’s mind-set and needs; and generally, to set the tone for a collaborative discussion.  A joint session allows counsel to demonstrate confidence and readiness to try the case if it does not settle, to establish credibility with the mediator, to show off in front of their clients and critically, to speak directly to the opposing party.  The parties, it is said, benefit from a chance to “tell their story” to a receptive listener, to demonstrate both their confidence in their case and their openness to a reasonable settlement and possibly to mention non-legal personal and emotional motivations that they will need to have addressed.  Theoretically, the climate for negotiations will be improved by beginning the day with a conversation in which everyone is cautioned to speak respectfully and to listen attentively.

For more on Mr. Quinn’s discussion on Joint Sessions, please read the full article from Law.com.

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.

Mediation Briefs: Do’s and Don’ts

By Martin Quinn

Martin Quinn

Martin Quinn

Here are some Do’s and Don’ts from a mediator’s perspective to help you prepare your mediation briefs.

Do remember that the mediation session will likely be the last day of your case.  Treat the event with the importance it deserves, and start by preparing an effective, timely brief.

Do submit and exchange your brief at least one week, and preferably two, before the session.  This allows time for opposing counsel to get it to their client.  Particularly if an insurance company is on the other side, it needs at least 10 days to consider and react to the brief — perhaps by increasing its reserves on the case.  Moreover, mediators have a lot to read — help them out by giving the time they need to digest your brief and put in a call to you to discuss the case.

Do set a collaborative tone and don’t insult your opponent.  Fisher and Ury said it all in Getting to Yes:  “Be hard on the issues, but soft on the people.”  Argue the facts and the law firmly and persuasively to show your case to its best advantage.  Also remember, you are trying to reach agreement with these people, not beat them into the ground.  When you want to reach agreement with someone — be it a spouse, child, partner or legal adversary — it doesn’t help to accuse them of fraud, racketeering, dishonesty and bad faith.  Do let the facts and the law speak for themselves — do not hurl ad hominem insults and gratuitous accusations.

Do come clean on any weakness in your case.  If you are strong on liability but shaky on damages, say so in your brief — and then explain how you are going to deal with the challenge.  Nothing will increase your credibility more with the mediator and the other side.  Nothing will torpedo faster any credibility you have than for the mediator to learn about some big weakness in your case only from the other side’s brief.

For more on Mr. Quinn’s Mediation Briefs Do’s and Don’ts, please read the full article from Law.com by clicking here.

Mediation Tips: Bidding against Yourself—For Fun and Profit

By Martin Quinn

Martin Quinn

Martin Quinn

Without a doubt, the words mediators most often hear from counsel are “I won’t bid against myself.”  This phrase is engraved as immutable law in the hearts and minds of virtually all counsel who come to mediation.  By this, they mean that they will not make another negotiating move unless their opponent responds to their last move.  As a general negotiating tactic, it usually makes sense.  Negotiation is a conversation, which should normally be reciprocal.  Neither side gives way without getting something in return from the other side.  But negotiating settlements in complex lawsuits is not the same as buying a rug in a Middle Eastern souq.  Counsel need to be more flexible, more creative and more willing to break “rules” to reach their client’s goal.  And yes, in a few instances, a creative negotiator should bid against herself.  Knowing when and why to do that gives counsel another tool to garner a win in mediation for the client.

The first instance is at the initial offer or demand.  Assume that plaintiff has made a pre-mediation demand of $1.5 million.  Defendant has refused to respond because the demand is so far “out of the ballpark.”  What to do?  By moving off the $1.5-million demand a bit—say to $1.425 million—plaintiff will get the negotiation conversation started, engender some good will in the defense room and demonstrate confidence in its initial number (because it moved only a little).  It will surprise the defense (who of course would never bid against itself) and put plaintiff in control of the early negotiation—all at no cost since the case obviously is never going to settle in the $1.4- to $1.5-million range.  In response, the defense is likely to make a more businesslike, higher offer than it would have made had the mediator insisted that it respond to the $1.5-million demand.

The second instance is when things are stuck after two or three rounds of minuscule, unconstructive tit-for-tat moves.  Plaintiff is telling the mediator it’s time to leave and expressing reluctance to lower its demand.  The defense should consider making another offer—that is, bidding against itself—but should shake things up by throwing in some non-monetary term.  For example, even without any response from plaintiff, the defense might increase its monetary offer by a small amount, but also offer to structure the settlement in a tax-advantageous way for plaintiff.  Or in an employment dispute, the defense might raise its back pay offer a bit but add an offer to pay for outplacement services.  This breaks the cycle of useless mini-moves, increases the “pie” of options available to frame a deal from money alone and again demonstrates confidence.

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