What We Can Learn From Law Students

The American Bar Association, Law Student Division, hosts a variety of negotiation tournaments for law students. I spent a Saturday afternoon recently as a judge of an early round of the in-school competition at UC-Hastings College of Law.

The students are being taught that the outcome of a negotiation is successful when the settlement:

• Is better than the best alternative to a negotiated agreement (with this party)
• Satisfies the interests of:
the client – very well
the other side – acceptably (enough for them to agree and follow through)
third parties – tolerably (so they won't disrupt the agreement)
• Adopts a solution that is the best of all available options
• Is legitimate – no one feels "taken"
• Involves commitments that are clear, realistic, and operational
• Involves communication that is efficient and well-understood, and
• Results in an enhanced working relationship, so the parties and/or their attorneys can deal with future differences more easily.

Here’s the behavior I saw from the law student participants:

They talked face-to-face.
They were respectful.
They tried to surface the other side’s underlying issues.
They were curious and tried to understand the other side’s views.
They advocated successfully without resorting to pressure tactics or bullying.
They carried on a civil conversation about the issues in the lawsuit.

And guess what? They think this is the norm! If your last mediation was not conducted in this manner, think about adopting some of the goals the ABA is trying to teach: an enhanced buy-in by the parties to the settlement agreement and an enhanced relationship between clients and counsel based on good communication skills.

Summer Reads: Negotiation and Mediation

I couldn't let summer pass by completely without making a list of books to read. If you’re headed for vacation, here are some ideas for books to take along.

Rene-Marc Mangin, Minds in Motion. Rene-Marc, a mediator, business consultant, and college professor, goes waaay beyond body language to discuss the nonverbals of subliminal influence.

Andrew Little, Making Money Talk. Andy, a North Carolina mediator, puts mediations that are based on money (as opposed to relationships) into perspective. Learn how to make your offer convey the information you want.

Linda Babcock & Sara Laschever, Ask For It. Written for women, this book will help anyone become a better negotiator.

Lynn Lancaster & David Stillman, When Generations Collide. While this book is about solving the generational puzzle at work, it speaks to all of us in understanding differences with those in different generations.

Dan Roam, The Back of a Napkin. Everyone has different learning styles. Learn how to solve problems and persuade others by using drawings--yours.

Martin Seligman, The Optimistic Child. This is a wild card--my favorite book on child rearing. We teach our children many things, but intentionally teaching them optimism may be the most important thing we can do. Seligman, a professor at Penn, believes optimism can be learned.

Let me know what books you're reading this summer.

How to Start a Successful Negotiation

Social psychologists point to mounds of research to prove that likeability is a major component of persuasion (e.g., Cialdini, The Psychology of Influence). Management professors invoke research to show that civility is important to closing the deal (e.g., Conger, Winning ‘Em Over). Legal scholars cite multiple studies to prove that building rapport is the most important initial phase of a negotiation (e.g., Craver, Effective Legal Negotiation and Settlement).

If you think about it, even our grandmothers knew this: “You get more with honey than with vinegar.”

First impressions count and every negotiation begins there. Your initial tone sets the stage. If you are positive, respectful, and professional, you start out ahead. If you or your mediator prefer not to start with a joint session, make sure you introduce yourself to everyone on the other side. Welcome them. Thank them for coming. Shake hands and make small talk.

If you are negotiating face-to-face, think of small talk as an integral part of the negotiation. It’s never wasted. The best negotiator I know can spend an hour on small talk before he gets down to business. By the end of that time, the other side sees him as a human being, not as “the enemy.” He gets fabulous results.

If this notion of the power of small talk is foreign to you, or if you have never appreciated its value, take some time to prepare for this “phase” of the negotiation. Think about topics that will bring you and the other side together, instead of figuring out how to keep yourselves apart. You will be laying the groundwork for a successful negotiation.

Creating a Negotiation Plan

Most of us prepare for mediations on auto-pilot. If we’ve evaluated the case, gotten settlement authority from our clients and written the mediation brief, we kid ourselves into thinking we’re good to go.

This tried and true method works . . . until impasse. Then we’re stuck, wondering why the case won’t settle, or, at a minimum, how the other side cannot possibly agree with us about the appropriate ballpark to be in.

One of the ways to avoid impasse is to create a negotiation plan. Then, if there are miscues or hurdles along the way, we have an organized, pre-planned way to deal with them. This is not to say that we won’t improvise, but at least we know where we’re headed and how to get there.

The essential elements of a negotiation plan include:

1. How to start
2. Where to start
3. What information to exchange—and when
4. Preparing to avoid verbal leaks
5. What concessions to make—and when
6. Bargaining strategies that work
7. Bargaining strategies to avoid
8. Preparing for emotions—(yours, your client’s, theirs)
9. Brainstorming through impasse
10. Saving face—(theirs)

I'll be writing about these in the next series of posts.

Hats Off to Michael Mortimer!

Speaking of civility, trial lawyer Michael Mortimer has an article in January’s Plaintiff magazine, “The courtroom: no place for personal attacks.” It’s worth a read.

Essentially Mortimer points out that when reading briefs, judges “get” who is casting aspersions. If the other side is making personal attacks, there is no need for you to stoop to their level, no matter how tempting. Not only is responding in kind counter-productive, such responses are a waste of the court’s time.

Mortimer recommends taking the high road. He also adopts a strategy I’ve used in the past when I’ve been irritated by opposing counsel: ask another lawyer to review your brief to edit out any hint of derogatory language. You want to be the guide, not the denigrator.

In oral argument, personal attacks are a distraction. They detract from your strong points. They damage your own reputation. While they may put the other side on the defensive, they do not make you more persuasive. In fact, just the opposite. More than any other legal group, judges appreciate civility.

This advice holds true for mediations as well. Your goal is to coax the other side inside your ballpark. Persuasion through civility, not denigration, is the key.

A Secret About Mediators

I hope not to get drummed out of the mediation profession for revealing this.

Mediators strive to be neutral, or as Ken Cloke so eloquently puts it, “omni-partial.”

But mediators are human, too.

If you come to mediations prepared, respectful and open-minded, you will go a long way towards gaining the mediator’s respect. Should that make a difference? No. Will it make a difference? No guarantees, but it might just be worth your while.

Here’s why. Years ago, as a young lawyer, I was selected as a juror in a criminal case. I think I was left on the jury because I was so young. (The lawyers figured I didn’t know enough do any harm in the jury room. Turns out, they were right.)

I learned an enormously important lesson during my jury service. I liked the prosecutor. I didn’t like the defense attorneys. It should not have had an influence in my decision-making about the case. But it did. That’s when I realized that as a trial lawyer, I wanted to be the nicest person in the courtroom.

The same holds true for mediations. As I lawyer representing a client, I want to be the nicest lawyer at the mediation. Why? Because I am more likely to persuade…not only the other side, but the mediator, too.

Robert Cialdini, a social psychologist at Arizona State University, has written the definitive book on persuasion which includes a chapter on likeability called Influence: The Psychology of Persuasion. It includes a chapter on likeability.

I’ve written prior posts on likeability here and here.

At your next mediation, try being likeable. Let me know the result.

Mediation: Why Bullying is a Wasted Opportunity

Further to my post below….

As a mediator, I see w-a-a-a-y too many lawyers play the bully card in joint session. I think it works against their clients’ interests. Here’s what I’ve observed:

· Most bullied lawyers just ignore it (so nothing is gained)
· Most bullied clients become further entrenched in their position, i.e., bullying pushes them away, rather than coaxing them to a position closer to yours (so an opportunity is lost)
· Everyone else in the room thinks you’re a pain in the derriere (so your ability to persuade is diminished)

None of these outcomes resulting from bullying tactics enhances your clients’ position, which is what they hired you to do. Mediation is a venue where you can show off your skills to your clients with whom you are spending the better part of a day. So show off your intelligence. Be positive, creative, deft, nuanced. Your clients will appreciate you all the more.