Like most (if not all) other mediators, I begin my opening statement by explaining that I am a neutral party tasked with facilitating the parties’ settlement discussions. But what exactly does “neutral” mean? Even within the mediation literature, neutrality is a nebulous concept that means many things to many people. One thing is certain: a mediator who believes that being neutral means shuttling offers back and forth without comment or question is useless. Continue reading
My father still loves to tell the story about the time he and his friend John painted my grandmother’s (his mother-in-law’s) house in the early 1970′s. My father and his friend John are retired high school teachers and administrators. Back then, they would paint houses and do light construction jobs during the summers to help make ends meet.
Ever the gracious host, my grandmother attempted to make the tedious task of painting her house more tolerable for the men. Upon their arrival, my grandmother greeted my father and John with a fresh pot of coffee and some fresh baked cookies. Not being a coffee drinker, my father politely refused and in the process, inadvertently threw down a gauntlet. Continue reading
There is a common misconception among negotiators and attorneys alike that one should never make the first offer. In most negotiations the parties are unclear about the other party’s motives, needs and interests and fear that they might will “give away the farm” by setting the initial offer too high or too low. The social science suggests, however, that the opening numbers influence negotiation outcomes in transactions and settlements greatly and that the party that makes the first offer typically achieves a more favorable outcome. This is due to the psychological phenomena called “anchoring.” Continue reading
You’ve probably had someone tell you, “Never make a decision on an empty stomach,” or you’ve heard an old proverb like, “An empty stomach has no ears.” It turns out that there is scientific evidence to support the link between empty stomachs, low blood sugar and our cognitive processes. Continue reading
As mediation has become a staple of the litigation process, certain conventions have arisen, for better or worse. Most mediations now adjourn to caucus immediately after the joint session, leaving you a limited window to directly address the other side. Your approach to these brief interactions should be tailored to the unique circumstances of mediation. As an effective mediation advocate, you should focus your opening statement on establishing an atmosphere conducive to settlement. Continue reading
In his seminal book Influence, Robert Cialdini recounts a study by two Canadian researchers of bettors at a racetrack. The researchers found that the bettors became far more confident in their choice of horse immediately after placing their bets, despite the fact that nothing about the situation had changed. The horse was the same. The other horses in the race were the same. The track was the same. The only thing that had changed was the bet – physical proof of having taken a position.
Psychologists understand that there is an almost biological drive to think and act consistently with a stated position. Most people want to be seen as being stable, predictable, dependable. They refer to this as the consistency principle. Continue reading
–Oliver Wendell Holmes
As lawyers, it is often difficult for us to shut off that part of the brain that is trained to argue. We develop our positions, craft our strategy, and try to steer the discussion to stay “on point.” But mediation is not a trial or oral argument, it is a negotiation, i.e., a discussion between parties with the intent of producing an agreement. In any negotiation, the party with the best information gets the better deal. Information isn’t just financial statements, deposition transcripts or medical records. By paying attention to how a party presents their arguments or demands, you can gain significant insight about their motivation, interests and intentions. This is where “active listening” skills can serve you and your client well. Continue reading
Parties typically walk into a mediation with a starting position, a walk-away position and an idea of what range within which they feel comfortable resolving the case, i.e., their bargaining range. Settlement can typically be reached when both parties’ bargaining ranges overlap (a/k/a the Zone of Potential Agreement or ZOPA). Effective negotiators understand that each move during the negotiation is a subtle message to the other side indicating their bargaining range, and thus, the ability to settle the case.
Most mediations move quite smoothly. The parties have a good idea of the case value, and make carefully measured moves to get into the ZOPA. Once the parties reach a range from which they would have a difficult time walking away, the case usually settles.
But how should you react if you think the other side isn’t moving “fast enough” to get to the ZOPA; or if the other side is signaling a bargaining range that that doesn’t create a ZOPA? Continue reading
Trust the Process
At some point in nearly every mediation I am asked, “Can’t we just cut to the chase?” Sometimes, this frustration emerges early, other times it appears much later in the day. When that occurs, I typically ask the parties to trust the mediation process to reveal a settlement value both parties can accept. Continue reading