2018: Mediation Tips Revised
KEYS TO A SUCCESSFUL MEDIATION: Fundamentals of Mediation
Editors Note: This rambles a bit, so I have highlighted some keys in bold red.
I sometimes forget how little the average litigant, and even judges, know about mediation. There are no riveting serial television dramas staring a team of courageous mediators. Although my wife loves “Bull” a dramatic series about a courageous and brainy jury consultant.
By rule, judges may not even be told what goes on in mediation, so here are some insights for them and you. I mediated a case successfully yesterday, but I made a rookie mistake. I thought I got an offer to take to the other side, but they were holding back, and I missed it. That faux pas set us back but did not derail the mediation.
When I went back to that side believing we were only $9000 apart, we were really $15,000 apart. I had misunderstood the first side’s settlement position. That was embarrassing, and it was harder to get to the compromise number. I also showed the famous “Burt Hunter pique’”, and that’s not a good thing. We live and learn.
However, I kept one principle in mind, and that led to the settlement, always try to the number of disputed issues. It was a divorce division of property and debt mediation. We started with twenty variables, but one attorney had produced an outline that allowed the parties to stipulate to ownership and values of more than half of them.
We worked hard for an hour or so on various values, and the BIG issue, whether 3 of the assets were partially or all marital assets or separate. Separate assets are ones a party owned before the marriage, had received by gift or inheritance from someone outside of the marriage, or was separate because it was a personal injury settlement.
Another key to this successful mediation is the lawyers remained engaged, cordial, and collaborative throughout the negotiation. And, one lawyer had a “hard stop” requiring his attention, so negotiations got serious an hour or two earlier than they might have. That’s probably a good reason not to leave a whole day for a routine mediation. We tend to fill the time we have available. But the lawyer and party who does not have a “hard stop” keeps options open.
When we got down to 3-4 variables, I suggested the other side turn it into a cash demand for “equalization” of the equitable distribution. That means that even though the parties did not agree what the family residence was worth, how much of the equity one of the parties had a claim to, and what the reconstructed vintage automobile was worth, we had reduced the dispute to one issue, money.
When we got to two numbers that were close enough that it would cost the parties more to litigate the issue than to compromise it, we were almost there. It wasn’t close enough to “split the difference” but almost.
One party used a technique that could have derailed our efforts but was smart enough to abandon it when necessary. My recollection is I learned that technique from “Getting to Yes – Negotiating Agreement Without Giving In” by William L. Ury. I read it the first time in the late ‘80’s. That technique, as I remember it, it to have a beginning offer, a fallback number, and a bottom line. That won’t work in Family Law negotiating for two reasons:
a. Sometimes there are 20-30 issues, so offers must be innovative and fluid; and,
b. For at least a decade, I kept coming back from mediation having accepted less than my “bottom line” and I could not figure out why.
I eventually learned why from WVU College of Law Professor Tom Patrick who showed us a graphic similar to the one below. The curves at the outer edges of the page are each party’s starting position, the second line is the fallback, and the third is their “bottom line”. As I explain to my client, it is the circle in the middle that contains the tough territory, the place neither party wants to go.
But, in most instances, each party must go somewhere in that circle to reach agreement. It might be dead center, but it might be closer to one party’s “fallback position” if that is the more reasonable position.
Remember, both parties might not be starting from a reasonable position. Sometimes my client’s real desire it so close to the likely result that we must create an illusory first demand to get there. No one likes to think he or she must meet the first demand of the other party. Bad negotiators arrive, state their position, and never move from that position throughout the day. Such mediations are doomed to failure.
I go into mediation knowing my client’s concerns and goals. I have talked about my information gathering techniques in a recent post: http://hunterlawfirm.net/digging-2018-short-sweet/ .
My “regular mediators” sometime ask to look at “Mr. Hunter’s top ten lists” , knowing that I have had them make numbered lists of their worries, goals, and complaints about the other side. These lists are helpful in that they let me give the mediator and the judge concise summaries of the issues in the case and our positions. But I do not go into mediation with three pre-conceived offers in mind. The reason I don’t is I do not know what the other side is going to say or reveal. Two examples:
a. I once went into a BIG personal injury mediation with a chip on my shoulder. The other side, in a seven-figure case, dragged their feet so my clients could not the original limited liability limits of $20,000 per person prior to Christmas, adversely impacting their, and my, holiday. (We were dealing with the underinsurance carrier at mediation).
The mediator, a friend, took me aside and cautioned me to tone it down (there’s the famous ‘Burt Hunter pique’ again!) because the other side had found a letter from my client’s doctor in her medical record which severely compromised her claim to have been in good shape before the collision. That letter probably cost us $200,000 which we had to concede to make the deal. Fortunately, but it was still “seven figures”. Had I to do it over, I would have not started on a “high horse” because it was somewhat embarrassing to have to climb down from that horse.
b. In another case, I fully intended to get my client $50,000 for a hip injury. His hip had been “frozen” for 40 years from an infection related to tuberculosis when he was 13 years old. A side impact auto collision “unfroze” the hip, leaving rough joint surfaces to run and become inflamed. Within 60 days he was required to retired from his trade as a barber. Before the planned mediation, I got a call from the other lawyer.
We had signed a release for him to get my client’s social security records. During the initial Social Security exam, my client had, under oath, sworn that he had sustained “no serious injuries” during the five years before he filed his disability claim!
When I asked him “Why?!”, he answered, “I thought if I told them the truth, they would deny my disability claim.” Having established without doubt that my client would lie for money, we had no choice but to lower our demand.
Neither of these cases would have settled if we had rigidly stuck to our preconceived ideas.
My point is that until mediation begins it is hard to understand the other side’s position, argument, and facts. I have come to mediation of one mind and left knowing that I would never have wanted the judge or jury to hear that case. More often, the compromise was predictable, but mediation is still necessary to get the clients to a position where they could settle.
Finally, a family court judge who had been a magistrate most of her career admitted to me, “I have never attended mediation.”
Another judge bragged, “In my 20 year career, I never went to mediation with my client.” I respected the first judge, for hercandor and for the fact she simply had never had the opportunity.
The second judge, not so much. She had just proudly admitted to sending her client to negotiate her own case! To me that is both malpractice and a wasted opportunity!
This is the common, if misguided, practice in other parts of the State. In North Central WV, we know negotiating is an acquired skill that requires study and practice to achieve.
Final tips: prepare and educate your client, listen, advocate, argue, but remain pragmatic and flexible, and most cases will settle!
This post was written by Burton Hunter