Keys to a Successful Mediation
Published to: 000116, 000117, A Small Town Lawyer's Perspective, civility, Elkins, gilmer, negotiation, Perspectives of a Small Town Lawyer, settlement, upshur, West Virginia Lawyer - Tips and Techniques
on July 30, 2013 9:44 pm
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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, reducing 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 fairly routine mediation. We tend to fill the time we have available.
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; 1. Sometimes there are 20-30 issues, so offers must be innovative and fluid; and, 2. 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 Patrickwho 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 has to 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 may not start from as reasonable a position. Sometimes my client’s real desire it so close to the likely final result that we have to create an illusory first demand to get there. No one likes to think he or she has to 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 my articles: 1. Something Constructive: How to Organize the Facts in Your Case: http://hunterlawfirm.net/?p=381; and, 2. More About Organizing the Facts in Your Case: http://hunterlawfirm.net/?p=279 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. This 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:
This post was written by Burton Hunter