Mediation: Making Money Talk

I had the pleasure of meeting Andy Little, the author of Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes, at the ABA Dispute Resolution section's annual meeting in Seattle earlier this year. Andy is a great guy, as well as a thoughtful mediator.

Andy has written a wonderfully useful book about mediating civil trial court mediations. His bona fides are inpeccable: after 17 years as a trial lawyer in North Carolina, he began mediating litigated cases. He has been mediating full time for 16 years.

Initially, Andy introduces the reader to a typical rear-ender case. The plaintiff was 24 years old. After 12 rounds of proposals, in a mediation lasting 4 hours and 36 minutes, the parties settled.

"At the end, the participants signed the argeement, wrote their checks, said their good-byes, and went their separate ways. Their interaction was courteous but stiff. Although an agreement had been reached at mediation, no one was particularly happy with the settlement or the difficulty with which it was reached.

This was a once-in-a-lifetime experience for [plaintiff]. He would not have an opportunity to see or speak with the people on the defendant's team again. His relationship with [his attorney] concluded with the settlement of the case and would not seek the services of a lawyer until age 40 when he inherited some money, bought a house, and made a will.

The members of the defense team were professionals. For them, this was just one more automobile accident, one more claim, and one more negotiation.

Welcome to the world of civil trial court mediation."

I don't think I could have set up this scenario any better. This is exactly what civil litigation mediation looks like. Even given this reality, Andy argues that facilitative mediators can play a productive role.

"In the position-based bargaining that goes on in civil trial court mediation, the mediator's chief aim is to help the parties overcome their reactivity, refrain from stopping prematurely in reaction to the other side's proposals or in reaction to their own pessimism about the prospects of settlement, make thoughtful rather than reactive proposals, and continue moving through their ranges until they reach their best numbers or are sure that their best
numbers will not settle the case."

This is not just a book for mediators. It's a book for every lawyer involved in civil litigation mediation. Since less than 2% of cases go to trial, mediation is where you can shine as a lawyer.

Persuasion Through Preparedness

I laughed out loud when I read in Negotiation Genius (now in paperback!) that in a negotiation, if you are not prepared, you should at least look prepared.

I laughed because it’s true.

Think about a situation you’ve been in, in which acting the part was as important as being the part. It happens all the time in social settings and in business settings. It works at trial.

Malhotra and Bazerman believe that paying attention to detail and being systematic in approaching negotiations give the impression that you are prepared. They also note that if the other side believes you are prepared, it is less likely they will to try to deceive you, because they think getting caught would be too risky.

Sometimes the press of work leaves us less prepared than we’d like to be going into a mediation. Preparedness is the key to a successful negotiation, but, if you haven’t had time to prepare for that mediation, try looking prepared.

More on Ken Cloke's Conflict Revolution

Mediate.com has a story about Ken Cloke's book, Conflict Revolution: Mediating Evil, War, Injustice and Terrorism: How Mediators Can Help Save the Planet. Apparently his publisher, Janis Publications, has sent the book, gratis, to 1,000 thought leaders in the U.S. and around the world.

Wow!

If everyone started reading Ken Cloke, what a different world we might live in!

Vickie Pynchon at Settle It Now Negotiation Blog has an in-depth review of the book, here.

Mediation and Negotiation Summer Reading

Where does the time go? Only two weeks ‘til Labor Day weekend. Yikes!

For those of you who are off to the pool or beach before school and the presidential campaigns start in earnest, I am pleased to suggest an End of Summer Mediation and Negotiation reading list. All of these books came out this summer with the exception of Professor Craver’s. (It just happens to be new to me.)

Cloke, Conflict Revolution: Mediating Evil, War, Injustice and Terrorism. I interviewed Ken about his book, which suggests using mediation's interests-based approach to international conflict, here.

Craver, Effective Legal Negotiation and Settlement. Who knew that one could write an accessible and readable hornbook? My negotiation professor has done it! Everything you need to know about negotiation is right here.

Friedman and Himmelstein, Challenging Conflict: Mediation Through Understanding. The Understanding Method of mediation is an insightful and powerful way to address conflict, one which can leave your clients more satisfied than any other approach. Here’s my earlier review.

Goldstein, Martin & Cialdini, Yes! 50 Scientifically Proven Ways to Be Persuasive. I posted a short review of this book, here. I’m a Cialdini fan and this book is a breezy and fun summer read.

Lenski, Making Mediation Your Day Job. If this vacation is one in which you plan to sit back and assess where you are and where you’re going, this book is indispensable. You do not need to aspire to be a mediator to read this engaging marketing book. You can read my review at amazon.com here.

I hope on your time off you'll re-charge and have fun!

Mediation Joint Sessions: Are You Missing the Boat?

Most mediations have a component of caucusing, where the mediator and one side will sit down together to discuss the case. Some parties and some mediators will negotiate in caucus during the entire mediation.

I’m going to suggest that you could be missing the boat by caucusing. We could start the laundry posts I've recently completed on persuasion:

1. Appreciation
2. Affiliation
3. Storytelling
4. Respect
5. Likeability
6. Out-Listening

It’s very difficult to use these persuasive negotiation skills to your client’s advantage when you are sitting in a room with your client and not sitting in a room with the other side. Not to mention the fact that you’ve ceded most of your power to the mediator, who is conducting the shuttle diplomacy. (Admit it. Don’t you cringe a little bit for the legal profession when you see a lawyer for the other side sitting reading a newspaper during the caucus phase of a mediation? Wouldn’t you at least want to keep your head in the game?)

In addition to not using the skills above, you and your client are missing out on a crucial part of any negotiation: information gathering. When the other side is doing the talking, you can look for and listen for nonverbal clues and verbal leaks. Mediators rarely leak like the other side because they are neutral and not emotionally attached to the information.

The challenge is in the joint session. Hone your persuasion and negotiation skills and rise to the challenge. Try staying in the joint session as long as possible. Impress your client by your skill at negotiation, not your small talk in caucus while the mediator is talking to the other side.

Welcome to the Blogosphere Paul Merlyn!

My friend and colleague Paul Merlyn has launched a new blog called Wires Crossed. Paul is a well-respected, accomplished mediator in Northern California. He has three great websites: New Resolution, which features a varied and general mediation practice, CID Resolution, which features disputes involving homeowners associations, tenants in common, condo conversions and homeowner/contractor disputes, and San Francisco Real Estate Brain, which covers all things real estate. I hope you'll check them out.

When I was a new mediator, Paul was kind enough to join my mediation study group. His calm and supportive demeanor as well as his intellectual and intuitive grasp of mediation best practices were helpful to all of us. He was also my mentor on the Board of Directors of the Association for Dispute Resolution of Northern California. And did I mention that he is a delightful human being?

Congratulations, Paul! I look forward to reading your posts!

The Value of Unplugging

I’m addicted to technology.
For all its pervasiveness and intrusiveness, it’s seductive.
I love it.
Except for when I hate it.
Mostly I hate it when it doesn’t work. (O.K., most of the time it’s me who can’t make it work.) In any event, I’ve come to rely on it.

Take the internet.
I check my emails 20 times a day.
I read the news online. I surf the net.
I blog. I read other bloggers.

This morning was different. This morning I returned from 17 straight hours without a computer. And I have to say . . . it was kind of nice. I had a lovely dinner with friends. I started a new mystery. I checked in with my kids. I played with the dogs. I puttered around the house. I did not feel pushed.

And I made a resolution. I decided to unplug my computer on Sundays. From henceforth, Sundays will be a computer-free zone for me.

Well, maybe not tomorrow. I think I'll start a week from tomorrow.