From a practical perspective, it would be naïve to assume that opposing counsel hasn’t already “Googled” your client looking for incriminating information, particularly on social networking sites like Facebook and Twitter. But many Facebook and Twitter users consider their information “private” and use the available privacy settings to limit those who have access. If information is not readily available to persons other than “followers” or “friends”, can your client be forced to produce their Facebook or Twitter account information? 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
–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
One of my guilty pleasures is the History Channel reality show Pawn Stars. If you are not familiar with the show, it follows the Harrison family, proprietors of the Gold and Silver Pawn Shop in Las Vegas. On camera, the owners of the shop (the “Pawn Stars”) don’t deal with your typical pawn shop fare like broken jewelry or old power tools. Customers bring in a wide assortment of items to sell ranging from antique firearms to Disney collectibles to artwork to classic automobiles. The drama that ensues can only be considered a master-class in negotiation mistakes, with the sellers committing several common negotiation errors. Here are some of the more common mistakes the sellers make that you should try to avoid, whether in mediation or in regular negotiations between parties: Continue reading
Effective mediation advocates prepare their cases in advance. They discuss the strengths and weaknesses of their positions, as well as settlement options, with their clients. They draft their opening statement and consider their first move carefully. They bring key documents or exhibits they believe will be persuasive.
But the most effective mediation advocates also prepare the mediator. Continue reading