Author: Jeffrey Krivis

SETTLEMENT MATTERS

Periodic columns published about strategies and techniques in negotiations that occur in litigated cases:

The evolution of hunters and gatherers (PDF)

A Conversation on the Challenges of Mediation Practice (PDF)

The Negotiation Campaign (PDF)

What movie do you want to make? (PDF)

The argument as a persuasive tool in negotiation (PDF)

The soft touch: The village elder (PDF)

Guitar logic in mediation: Cowboy chords vs. jazz (PDF)

The transactional mediation approach: dealing for dollars (PDF)

Negotiating the reverse auction in class-action cases (PDF)

“Take this!” (PDF)

Why litigators become less intelligent in group-mediation settings (PDF)

The reptilian need for closure (PDF)

Mediation in the woodshed (PDF)

The crystal ball of mediation: Predicting success at trial (PDF)

The Diminishing Shadow Of The Courthouse (PDF)

Setting The Anchor (PDF)

Using A Focus Group When Your Case Gets Locked Up (PDF)

The Windup Before The Pitch (PDF)

Try A Workaround (PDF)

“Reverse Engineering” The Settlement Of A Punch Press Case (PDF)

A Touch of Grey (PDF)

Saving Face: Lessons From Google’s Tiff With China (PDF)

What Tribe Are You In? (PDF)

The Electronic Curtain: Mediating Through E-mail (PDF)

Checking – And Changing – The Status Of The Players (PDF)

Deception In Mediation (PDF)

How To Price The File (PDF)

Speak Their Language (PDF)

When Your Client Is Out Of Control (PDF)

How To Settle A Multi-Party Case Where The Defendants Are Fighting With Each Other Over Liability And Coverage (PDF)

Dealing With Lack Of Authority (PDF)

Can A “Take No Prisoners” Mediator Help You Maximize Your Recovery? (PDF)

What To Do When The Settlement Numbers You Put On The Case Are Miles Away From The Defense Perspective (PDF)

Using The Memorandum Of Understanding As A Draft Settlement Agreement To Streamline Settlement (PDF)

Setting The Stage Of Negotiation (PDF)

Dealing With The “Gap” In Negotiations (PDF)

Use A Ballot To Settle Multiple Claims At The Same Time (PDF)

Don’t Be The Terminator (PDF)

The Elephant In The Room (PDF)

The OODA Loop (PDF)

The Settlement Drift

According to commentator Rachel Maddow in her book “Drift,” the way the United States goes to war has gradually become more secretive and less democratic. She observes that in the last half century, the decision to go to war has become too easy. This is contrary to what the Founders of our nation had in mind. Hence, we have “drifted” away from our founding principles about war.

The drift in our ability to go to war is similar to what has become of modern mediation in the litigation arena. Initially a product of the desire for more efficient and cost effective settlements, the mediation session was seen as the final play in the drama. The moment the curtain would close and the audience would applaud. The mediation session represented the end of the show and a chance to step back and look away from the play. All of the preparation that went into the production was effectively utilized to present the play, and the actors were on their best behavior. If the case had a chance to settle, it would. There were no excuses for parties not being prepared, authority levels not available, or decision makers hiding behind layers of bureaucracy. Cases resolved because the process was designed for closure.

Now, almost 25 years later, the mediation session has transformed itself into one additional step in the litigation menu. Certainly it is still a popular opportunity for case closure, but not necessarily in the minds of the litigants. The process has become strained to the point that the current approach is to schedule mediation without a sense of urgency. It is done to comply with a court order or simply as a matter of practice, with often no expectation of finality. It is often exhausting to be in the middle of this type of drift when the founders of the movement desired the mediation session to be the final moment in the play.

What has happened to cause this type of cultural lethargy in mediation?

1. The dilution of the process by mandatory mediation programs. The institutionalization of mediation into court programs has resulted in way too many cases going to mediation that did not belong in that process in the first place. Why? The court viewed mediation as a panacea to court funding issues and a way to manage caseloads, while the mediation community viewed it as a distinct process that is client centered and empowering. The court imposed strict time guidelines on the process and the litigants, resulting in less thought given to process management and more thought given to court compliance. Another bureaucracy was born at the expense of a successful process.

2. The failure of litigators to be fully prepared to discuss, not argue their cases. When the court put its imprimatur on the concept of mediating litigated cases, it impliedly encouraged the same type of approach that lawyers use when they are pleading a case to a judge. That approach seems to involve arguments where one side wins and the other side loses. Arguments of this nature made outside the formal structure of a courthouse are not as persuasive as discussions between counsel and parties where blame is discussed but not the focal point. To counter this dynamic, mediators and parties have gone to extremes to avoid direct dialogue. This has often reduced the role of the mediator to a “water carrier” of offers and counter offers, similar to a production worker. This automated approach reduces what has been the main ingredient in successful mediation practice — creativity.

3. Loss of Confidence In The Process. After years of participating in repetitive and somewhat scripted processes, some litigators have lost confidence in the process of mediation. They take extreme and unreasonable positions early on and lose patience if the case is not in the proper settlement range by the second or third move. Mediators are guilty of not shaking up the process so that the parties are actually forced to think a bit outside their comfort zones. This reality, coupled with the usual and customary gamesmanship that occurs in every negotiation, has resulted in a contamination of the process and lack of patience on the part of litigators. What was once considered a simple negotiation tactic to get a better deal has turned into an inadvertent effort to fool the mediator into actually believing negotiation tricks and tactics. This can and often does result in the mediator calling an early impasse, or the parties folding up their tents without letting the process unfold.

4. The Follow Up Syndrome. Some lawyers conclude that there might be more value in not settling so long as the mediator “follows up” and nudges the parties to different numbers after the session has gained momentum. One strategy that has become commonplace is for lawyers and companies to use the mediation session as a sort of “scratch and sniff” opportunity. The idea is to check out what might be below the surface, but don’t let the other side know you’re open to settlement. The latter would be accomplished by the work of the mediator after the session when s/he calls everyone to follow up at no charge to the parties. While follow up is critical to the success of some mediation, it is lately overused by some parties to gain more favorable resolution.

5. The Concept of Managed Care. Like doctors, lawyers who are hired by insurers are to some extent following the guideposts of the treatment the insurers deem necessary and appropriate for the dispute. In order to reduce costs, insurers impose limitations on settlements. While this has been an effective way for insurers to save money, it does come at a price by sometimes paralyzing defense counsel who are sincere about resolving disputes. A cycle can occur in which truly excellent defense lawyers are unable to be proactive and honest about risk for fear that their principal will not respect their suggestions.

6. The Economics of ADR Providers. The proliferation of administrators of private mediation and arbitration programs has added an economic layer to the system. While there are benefits to this business model, it creates added pressure on the neutrals to increase their billable time in order pay the costs of the administrator. This economic reality has bled into the system so that it has become acceptable to conduct numerous hearings at a sizable cost to the parties in order to satisfy the multiple economic interests that are integrated into each case.

What can be done to fix the system?

Some might argue that the system doesn’t need fixing. After all, most providers and successful mediators are enjoying sizable financial benefits, and the courts continue to inundate private industry with referrals. Indeed, when the mediation process is successful it is a joy for all involved and a reminder of why the process gained such favor in the civil justice system. Yet, like any “system,” when it becomes too standardized and repetitive, marginalization occurs. To counter this dilemma, a few ideas are worth considering:

1) Reduce the number of cases referred by courts to mediation. Judges have limited tools in their boxes for managing increasing caseloads. Encouraging every case to go to mediation was good 25 years ago when lawyers needed to get used to and educated about the process. Now that we have moved into the institutionalization phase of mediation, courts should become more deliberative about which cases they encourage to mediate as well as the timing of the recommendation. Many cases need a proper exchange of information before negotiation. In fact, many lawyers are great negotiators and should try their hand at direct dialogue with their adversary before simply scheduling mediation.

2) Encourage the exchange of pocket briefs between the parties before the mediation so that time spent in the session is productive and less adversarial. The pocket briefs between the parties should be primarily focused on highlighting the information that best supports the case narrative.

3) Consider the appropriate use of joint sessions during the mediation, but not necessarily right out of the gate. What has happened in the “settlement drift” is that the parties have relied exclusively on the mediator to be responsible for all information and numbers exchange. By delegating all responsibilities to the mediator, the parties have missed out on a huge opportunity to influence the other side with direct dialogue. Lawyers should use direct dialogue to their advantage, particularly when they are articulate and trained as great communicators. Mediators don’t have an exclusive license on communication skills. A lawyer should be courageous and ask for direct dialogue from time to time if it will move the ball forward.

4) Respect the need for timing in negotiation. No one ever free falls or gets to their magic settlement number quickly, despite their best efforts. It is human nature to get accustomed to reduced expectations over time, which is why reducing a complex negotiation into a short period is a recipe for failure. Allow the process to play out and respect the fact that the mediator is managing expectations in more than one conference room.

Final Thoughts

The settlement drift described above does not have to be the new normal. With the institutionalization of mediation into the fabric of the civil justice system, the process of mediation will continue to change, and corrections are inevitably going to occur. The trend toward better screening and intake of mediation cases is already taking place on the front lines, and mediators have begun a concerted effort to bring creativity back to the forefront. Moreover, law schools have produced a huge crop of advocates who are highly educated in the proper use of mediation and will not stand for “same old same old.” Its time to control the drift in the process and press the reset button so we can return to our founding principles about mediation as a preferred method of dispute resolution.

The Rules of Improvisation

1. Don’t deny offers and ideas: Denial is the primary reason negotiations get stalled. It causes you to have to regroup and try again, and it builds frustration in all parties including your audience.

2. Say yes, and!: Every negotiation is a communication process built on a story. To begin with, the players have to agree to the basic set-up; the who, what and where have to be developed so that the stage is properly set for the negotiation. After that, each idea should be met with “yes, and.” By saying “yes, and” we are not necessarily agreeing with the principles presented by our partners. We are simply developing the scene. First we accept the reality created by our partners, and then we add new information, so that we can ultimately determine what realistic options are available for settlement.

3. Avoid questions: Asking questions is a form of blocking. Questions force our negotiation partners to stop whatever they are doing and come up with an answer. You put the burden of coming up with something “interesting” on your partner, which means you are no longer doing a scene together, but forcing that person to do more work than you are willing to do. On a more subtle basis, questions can be used to add information or tell your partner the direction to go.

4. Be aware of status: Status refers to pecking order. The person who is lower in status defers to the person who is higher in status. This is established partly by social position, e.g., boss and employee, but mainly by interaction. Either person can play low or high status. If you act in a way that says you are not to be messed with, you establish high status. If you act in a way that says you’d rather follow than lead, you establish low status. Either way, the other player must adjust to you. Status is established in every line and gesture and changes continuously, and different behaviors can be used to raise or lower another person’s status.

5. Listen: Pay very close attention to everything that happens in the scene. What you hear is the raw material that goes into your story line. Once you have registered enough information about the people in your scene, you can lead folks back to your idea or agenda. The good standup comic asks the audience questions and riffs on their answers to lead into the next preplanned punch line.

6. Spontaneity: Trust your imagination without doubt or question; let a scene move forward without preconceptions or a fixed idea of where it should go.

7. Make the other guy look good: You don’t get anywhere by putting the other person down or leaving them out to dry or making them feel stupid. The better you make your partner look, the better the scene is going to be, and, as a direct result, the better outcome you are going to achieve.

8. Tell a story: Storytelling is probably the easiest rule to remember but the hardest one to do. In a negotiation, you must take unrelated elements and bring them together to create an interesting tale.

9. Look beyond the words: Become sensitive to reading nonverbal communication so you can ask clarifying questions and sense what the real subtext is. Words are tools to accomplish goals, and character goals are often quite different from the dialogue spoken.

10. Don’t waffle: Some people like to babble in the hope an idea will pop into their heads. Waffling is a way of postponing making a constructive offer when you lack an idea.

11. Don’t try to be funny: Humor will naturally come out of a scene without any effort.

12. Make the active choice: Improvisational negotiation is about the doing. People are drawn to action. When there is the opportunity to do something (show rather than tell) always go for the active choice.

13. Enter and exit with purpose: Entering, exiting and staying put should have a reason, be justified. Don’t just say “Ok, bye” and walk out of a scene. Give a reason. Unjustified exits tend to be a problem.

14. Create a game within a scene: Every scene is like a skit and involves a game between the participants. In the famous Monty Python “argument” scene, the characters play a game in which everything that is said is denied, which becomes the agreed upon behavior of the players.

15. Allow ideas to form in the progress of the scene: Do not go into a scene with all of the beats worked out. Allow time for new ideas to arise. Do not panic when things do not happen when you want them to happen.

16. Understand pattern development: Be alert in a scene to developing patterns of conversation: “Mary had a little lamb whose fleece . . . “. The audience knows what you should say as well as your fellow performers, so say it.

Summary

Improvisation in traditional theater has relied on conflict to create drama. Improvisation in non-traditional theater requires agreement. Conflict for its own sake stops the action. Agreement allows the action to proceed, though it may take two or more opposing paths. What is fundamental is the relationship between the opposing characters.

Planning To Settle Complex Employment Cases? Ten Tips To Increase Your Chance of Success

Mediating complex employment cases is like rehearsing for a concerto. The conductor spends a substantial amount of time reviewing the score, while the musicians practice the piece both individually and collectively.  Hours and hours of practice result in one concert. Malcolm Gladwell, in his recent book “Outliers,” describes the phenomenon of hugely successful people and how they achieved their success through planning and preparation.  For example, the Beatles rehearsed and played their music for at least 10,000 hours before they were ready for the Ed Sullivan Show.  That’s not to say it’s necessary to spend that much time preparing for an employment mediation, but the potential for success or failure depends on your willingness to invest the time in planning.

The preparation process allows a litigator to anticipate mine fields that will occur in a mediated settlement, and provides for direction when it appears that the case might be at an impasse.  This process brings you two-thirds of the way toward the finish line and is critical in the trial lawyer’s toolbox.  Getting to the finish line requires simple implementation of the planning process, which utilizes the strategies and tactics of a good negotiator.  In addition to helping guide you through the implementation process, a good mediator will provide closing techniques that take the case into the end zone.  This article focuses on the planning and preparation process and offers ten modest suggestions for success.

1. Financial Ability and Willingness To Pay – Whether dealing with a class action or single plaintiff case, the first consideration should be whether the defendant has the ability to pay a settlement based on your expected value.  This issue has become much more prevalent in times of economic recession, even in companies which appear on their faces to be successful, i.e., having numerous corporate locations and many employees.  Some of these companies are surviving on a shoestring, hoping to get through difficult economic times by staying even with the game.  Big payouts for litigation could trigger default obligations with lenders which are not readily apparent until you get into the mediation room.  Small businesses count on cash flow in the same way that many in society live paycheck to paycheck.  An asset check on the defendant is a good first step, but it is only the beginning of the story.  A candid discussion with defense counsel might unearth additional information that is not available through conventional means.  For example, defense counsel might provide some clues about their client which they couldn’t say during the mediation — with the client sitting next to them – which would allow trial lawyers to manage their own expectations before getting into the mediation room.

2. Learn Their Constituency — Many companies bring negotiators to the table who are not the ultimate decision makers.  An obvious example involves governmental agencies where board approval will be required.  In those cases, when convening the mediation it is critical to make sure someone will be present whose recommendation has been accepted by the board on most occasions.  When dealing with non-governmental cases, such as corporate decision makers or out-of-state insurance offices, having someone available by phone after hours is not the best option, but it is sometimes the only option to get the wheels of settlement spinning.  If this is the case, make sure that the defense gives permission to the mediator before the case is heard to have direct contact with the decision maker.

3. Social Networking – Before stepping into the mediation room, an investigation of both your client and the defendant should occur through not only an online search engine, but also through whatever social networks are accessible. There is no doubt that the defense will investigate a single plaintiff case through MySpace and Facebook type networks in order to gather negative information about an individual plaintiff.  At the same time, individual defendants and their companies are likely to have an online presence with data that may not surface during discovery.  The marketing departments of many companies control and manage the dissemination of online information.  They rarely communicate with the risk management side of the house as they have different goals in mind.  As a result, messages often appear online which are contradictory to defenses in a lawsuit.

4. Is Your Client Plaintiff-Worthy? — In the old Seinfeld series, Elaine spent considerable time contemplating whether her boyfriend was “sponge-worthy”.  If so, he might get lucky.  If not, she might as well dump him.  The same holds true in employment cases.  For wage an hour class action cases, sometimes the plaintiff had a limited job that precludes representation of all class members.  In addition, many plaintiffs are simply not qualified to represent a class based on inappropriate background information and/or behavior.  This should be determined before the case is filed, and appropriate backup representation should be enlisted.  In a single-plaintiff case, it should be assumed that the defense will discover most of the negative information about a plaintiff, and a determination should be made early on whether to pursue the case or to get into mediation quickly before extensive discovery takes place.

5. Timing – It is no accident that when children ask for raises in their allowance or money for some unnecessary item, they are clever enough to not ask during a family feud, when their parents have just come home exhausted from work or there is some type of pressure in the house. Instead, they wait for a special time like Sunday morning when the family sleeps in and has coffee and bagels and everyone is relaxed.  They know there is a higher likelihood of getting an acceptance on the request under those conditions.  The timing for negotiating a settlement has the same characteristics.  Oftentimes the defense will want to have an early mediation before expenses are incurred in litigation.  While this is a good opportunity to settle the case, it is also code for compromise.  Compromise is the raw material of mediated settlements that may not necessarily produce an optimum outcome for your case.  By agreeing to mediate early, simply recognize that the case will be discounted off the potential value which occurs closer toward trial.

6. What Does The Data Tell You? – In wage-and-hour class action cases, oftentimes the negotiation is driven by the financial documentation, such as paystubs and clock-in data.  This information should be gathered before formal discovery occurs through informal means such as client information as well as friendly co-workers.  The data could then be compared against what is provided by the defense in formal discovery.  When convening mediation, if the data has not been provided, it is absolutely critical to success that there is a commitment to provide the data at least one month before the scheduled mediation so that your forensic experts can analyze the case.  In fact, sometimes it is a sign of weakness to schedule mediation without having evaluated the data in advance.

7. Reverse Engineer The Numbers – Throughout the course of the mediation, particularly in wage and hour class action cases, it should become clear what the financial opportunities might be.  If that opportunity is below the plaintiff’s expected value, consider reverse engineering the numbers so that both sides can achieve their objectives.  For example, if the employer in a class action has a budget of $500,000.00 in cash to settle the case, break it down into its component parts, including attorney fees, class representative enhancement, costs, administrative expenses and other miscellaneous costs.  Subtract that number from a higher settlement number such as $750,000.00 and propose a hybrid claims-made process such as the type that involves a guaranteed payout of at least 50% of the net value. This works well in cases where it is not anticipated that there will be a large claim turnout.  Through reverse engineering, you can demonstrate that the employer achieves their objectives of a $500,000.00 payout while documenting a $750,000.00 settlement.

8. Embrace The Legal Issues – Oftentimes mediation occurs in the shadow of a motion for class certification or summary judgment.  The defense will want to discount the case based on the likelihood of success on these motions.  How an appropriate discount is determined in such a situation is a matter of justifying legal theories in relation to financial data and risk.  Assuming the parties are unable to find common ground on the discount value of the case, a settlement can occur contingent upon the outcome of the motion.  Similar to a “high-low” binding arbitration, the defendant can cap its exposure if it loses the motion, and the plaintiff can obtain guaranteed money if it loses the motion.  This can be an attractive option for some employers who are uncertain about the anticipated court ruling.  Even if it is an option that is not desirable by the defendant, the simple conversation about this option will lead to a more reasonable discussion of settlement numbers that could result in a fair outcome.

9. Exchange The Settlement Outline in Advance – Whether the case is a single plaintiff or class action, exchanging the proposed terms of the deal in advance will serve to identify the minefields that occur late in mediation.  To this end, in a wage-and-hour class action case, consider sending the defense a one page bullet point outline that includes consideration of: (a) injunctive relief for overtime, rest and meal break issues; (b) definition of the class; (c) class period commencement and end dates; (d) class members to be paid on cash or claims made basis; (e) pay period for failure to pay overtime; (f) pay period for failure to provide meal period – rest breaks; (g) pro-rated claims if they exceed the amount of monies available; (h) notice and claim form to be sent / attached to paystubs to class members; (i) notice and claim form to appear on claims administrator’s website; (j) notice, claim form and settlement papers to appear on class counsel’s website; (k) notice to be in English and Spanish; (l) identification of the claims administrator; (m) common fund to pay all claims; (n) cost of notice and claim administrator to be paid from common fund ; (o) possible cy-près of unused portion of common fund; (p) defendant has option to blow up if more than a certain amount of objectors; (q) defendant will not object to a separate award of the court of a  certain percentage of common fund to cover class counsel’s fees and costs; (r) class representative enhancement award; (s) dates for preliminary approval, claim form, objections / opt outs, final approval, payment of attorneys fees and payment of class members.

In a classic single plaintiff case, the proposed memorandum of understanding should take into consideration (a) Who the check is made payable to including a breakdown of separate checks for attorney and client; (b) whether a 1099 with Indemnity or W-2 is requesting or a combination of both; (c) date and characterization of termination i.e. resignation, layoff or termination; (d) additional payments due by statute or personnel policies such as vacation, sick pa, personal days, etc; (e) dismissal of lawsuit with or without prejudice and whether it involves entire action; (f) unilateral or mutual releases with Civil Code section 1542 language; (g) confidentiality and/or non-disparagement agreement; (h) reemployment or no reemployment; (i) job references; (j) any additional terms.

10.  Anticipate Objectors and Judicial Review of Fairness – The trend in the courts is towards strict scrutiny of complex employment settlements, particularly in the class action area.  As a result, when planning for a negotiated settlement of a class action, anticipate what will be included in your declaration which justifies the amount per employee assuming every employee files a claim.  If that amount is too low, all the effort leading up to the judicial fairness hearing will be wasted.  On the other hand, there may be sufficient risk factors involved in the case such as inability to obtain class certification, outstanding legal issues, financial ability to pay and so on which justify a range which would empower judicial officer to endorse the settlement.

Summary

It is no surprise that baseball teams spend six weeks before the season practicing their skills in the grapefruit league before they go to the big show.  Even Bruce Springsteen and the E Street Band rehearse the same songs they have been playing for 35 years before they go out on tour.  Lawyers who are planning on attending a mediation should not limit their planning to submitting a legal brief to the mediator the night before the mediation.  Instead, the brief should be the icing on the cake and the cake should be in the oven long enough so that it is fluffy and ready to eat. Remember, the Beatles had been performing for 7 years before they stepped foot on American soil. Now that’s preparation!

Jeffrey Krivis has been named one of the top neutrals in the state by the Daily Journal, and was awarded the 2010 Lawyer of The Year Award for Alternative Dispute Resolution in Los Angeles by Best Lawyers.  He teaches at Pepperdine Law School and can be reached at www.firstmediation.com.

“Whose Trial Is It Anyway?”

by Jeffrey Krivis and Brian Breiter

Picture a group of 30 trial lawyers in an almost empty room, loudly chanting, “Big Booty, Big Booty, Big Booty!”  Now imagine a pair of them trying to have a conversation without using the letter “S.”  How about two of them vying for the attention of a third by, at turns, singing, crying, jumping up and down, waving their arms, and even whispering?  Why on earth would a group of highly skilled and experienced attorneys engage in such seemingly childish behavior?  The answer is simple and surprising: they did it to vault their practices to the next level; to recognize and rethink old habits; to break through barriers they may not have even known they had; and ultimately to achieve more success.  And how did they go about this?  By participating in the groundbreaking course, “Increasing Effectiveness of Litigation Through Improvisational Theatre for Lawyers.”

Today we are in our fourth year of co-teaching a course created at Pepperdine University School of Law/Straus Institute for Dispute Resolution called, “Improvisational Mediation and Negotiation.”  To create authenticity, we brought in two top improvisation instructors, Joseph Limbaugh and Kimberly Lewis from Los Angeles’ acclaimed ACME Comedy Theatre to help facilitate the course.  

You Mean Make Up Funny Stuff?

For most people who have little or no exposure to improvisation, their chief reference is the popular television show, “Whose Line Is It, Anyway,” in which two or more actors make up a short comedic scene on the spot based on an audience suggestion.  Though this show popularized the form as never before, the truth is that improvised performance is as old as performance itself.  It pre-dates the invention of writing, since long before we started writing scripts human beings were telling stories by acting them out.  From the 1500s to the 1700s, Commedia Dell’Arte performers improvised in the streets of Italy.  And in the 1890s theatrical theorists and directors such as Konstantin Stanislavski and Jacques Copeau, founders of two major streams of acting theory, both heavily utilized improvisation in acting training and rehearsal.

After the Commedia died off, improv theatre faded into obscurity until it was separately and spontaneously re-invented in the 20th century by two people who have shaped the craft as it exists today — Keith Johnstone and Viola Spolin. 

Keith Johnstone started formulating his theories about creativity and spontaneity while growing up in England, and later brought them into his teaching at the University of Calgary. He felt that theatre had become pretentious, which is why the average man in the street didn’t even consider attending it. Johnstone wanted to bring theatre to the people who went to sporting and boxing matches, the same audience that Shakespeare had written for in his day. 

Johnstone decided that one approach would be to combine elements of both theatre and sports, to form a hybrid called Theatresports. The trappings of team sports were adapted to the improvisational theatre context; teams would compete for points awarded by judges, and audiences would be encouraged to cheer for good scenes and jeer the judges (“kill the umpire!”).   

Viola Spolin can probably be considered the American Grandmother of Improv. Back in the 1920’s and 1930’s, she began to develop a new approach to the teaching of acting. It was based on the simple and powerful idea that children would enjoy learning the craft of acting if it were presented as a series of games. 

Her son, Paul Sills, along with people like Del Close and David Shepherd, created an ensemble of actors who developed a kind of “modern Commedia” which would appeal to the average man in the street. As with Theatresports and the original Commedia, the goal was to create theatre that was accessible to everyone.  Sills started both The Compass Players and The Second City in Chicago.  Many of the original cast of Saturday Night Live came from The Second City and the franchise has since produced such comedy stars as Mike Myers, Chris Farley and John Belushi.  

But I Don’t Want To Be Wayne Brady

What on earth does improvisational comedy have to do with being a successful litigator or mediator?  The art and technique of improvisation involve the very same tools that serve people well in any professional endeavor.  When you think about it, life itself is an improvisation.  Every situation is new, and therefore benefits from a fresh perspective and a creative mind.  Not only that, but aren’t lawyers, in particular, essentially performers and storytellers?  What lawyer could not benefit from developing these skills?”

It is a common misperception that there is no skill or structure to improvisation, that it simply involves blurting out the first thing that pops into your head.  On the contrary, like jazz, there is an art and mastery to it that can be studied and practiced for years.  And the very tools and techniques employed by improvisational performers are just as applicable to practitioners of law.  The study of improvisation fosters the ability to think quickly on your feet.   It enhances the capacity to cooperate and collaborate, to validate others’ ideas while not abandoning your own.  Improvisation demands the keenest level of listening to and connecting with others.  It encourages openness to creativity and inspiration, willingness to take risks, a lack of judgment, and the capacity to say “yes” more often than “no.”   It’s easy to see that you don’t have to be an actor to benefit tremendously from all of these qualities.

Find Your Inner Child

“Genius is no more than childhood recaptured at will.”

–Charles Baudelaire

“Perhaps what we sometimes call “genius” is simply a refusal to altogether let go of childhood imagination.”

–Michael Cibenko 

A sign famously hangs in Paul Newman’s Westport, Conn., office that reads, ‘If I had a plan I would be screwed. Newman firmly believed in the benefit of ‘creative chaos.’  He understood and appreciated that success in today’s age depends on how good we are at improvising rather than merely sticking to a script or plan.  

At the negotiating table, improvisation demands that parties deal with the reality they are presented in real-time rather than continually revisiting scenarios of what they believe could or should be. By limiting oneself to a scripted plan, options for solving problems are narrowed and opportunities for solutions are more likely to be missed. Improvising instead of following a script or a plan, allows one the flexibility to stay nimble, and operate more freely and authentically.

The ultimate goal we are getting at for trial lawyers is the ability to truly be in the moment, as it is happening.  If we are thinking about how we planned something might go, we are not in the moment and not able to see and adjust to how it actually is going.  We have lost the ability to be spontaneous.

People can sense when someone is really in the moment and when they are trying to recreate something they rehearsed in their head an hour go, or when they are standing outside watching themselves, or are in other ways disconnected.  We can smell the artifice and the lack of authenticity and passion.  And we automatically disconnect from them, often without even realizing it.  It becomes like listening to a boring lecture in school.  We zone out and turn off. Obviously, this is a catastrophic problem when your vocation hinges upon how compelling of a communicator you are and how well you connect with your audience (read: the jurors, the judge, opposing counsel).

The dictionary defines spontaneous as, “coming or resulting from a natural impulse or tendency; without effort or premeditation; natural and unconstrained.”  Essentially, this describes a state that is the exact opposite of fear.  Fear is the biggest obstacle to spontaneity.  It disconnects us from our senses and robs us of our instincts.  When we are in fear we cannot really see or listen or react.  We are like the proverbial deer caught in the headlights.   

It is often said that most people fear public speaking even more than death.  Even many lawyers fear it, though it is part and parcel of their profession.  Studying improvisation can actually help to get past this fear.  A lot of improvisation involves playing games that seem like children’s games.  This is because people who are in a playful state are more open and receptive, more willing to experiment and to learn, without the fear of judgment.  To be sure, much of the work done in improvisation classes is aimed at rekindling a sense of playfulness, freeing up the imagination and fostering willingness to take risks.  

YES improv can help you, AND here’s how

One of the cornerstones of improvisation is the concept of “Yes, and…”  As two performers develop a scene together, each makes offers; an offer being anything they say or do that helps define the elements, reality or story of the scene they are creating.  It is the responsibility of the other actor to accept the offers that their fellow performers make; in other words, to assume them to be true and act accordingly, to figuratively (and often literally) say “yes” to their scene partners.

Ideally, accepting an offer is followed by adding a new offer that builds on the earlier one; this process is known to improvisers as “Yes, and…”   Every new piece of information added helps the actors refine and develop the action of the scene together.  To not do so is known as blocking, negation, or denial.  Here is an extreme example of blocking:

Performer #1: Hi, Mom.  You don’t look well.  Are you all right?

Performer #2:  I’m not your mother.  I’ve never met you.  And I’ve never felt better!

In this example, the second actor negated everything the first actor offered.  Let’s see what might have happened if the second actor used the concept of “Yes, and…:”

Performer #1: Hi, Mom.  You don’t look well.  Are you all right?

Performer #2:  No, honey.  I’m worried about your father.  He’s been working way too hard lately.

In this case the second actor says “yes” to the first by implicitly agreeing that she is her mother and that she is, in fact, not well.  She then adds the information about the father working too hard.  That’s the “and” part.  

Inexperienced improvisers tend to naturally want to block their fellow improvisers’ offers, and usually need coaching to break this habit.  Ironically, this is a trap mediators and lawyers often fall into as well.  People think if they don’t hold on tightly to their notion of what the answer is, that they will ultimately get the short end of the stick.  But what happens is, if you don’t listen to the other person’s needs, they completely shut down and the negotiations stall.  What I found out during thousands of mediations is that, often, if I simply gave both sides in the negotiation the opportunity to tell me their story, and made sure they felt listened to and heard, I had an excellent chance of helping them break the deadlock that had brought them to my office in the first place.  

The trial lawyers who participated in the improv class have found the “Yes, and…” concept particularly helpful.  “Recognizing, and then stopping myself, from just ‘blocking’ an opponent and, instead, listening to what they require and attempting to fulfill the need has led to more productive and less frustrating negotiations for me and more successful results for my clients,” says attorney Dawn Smalberg.  

Attorney Lisa Maki has also used “Yes, and…” to great effect: “In mediations during and since the class, I have used this method to open up my ability to listen and really understand where the defense and the mediator are coming from, allowing me to pick up signals early on to guide me to a resolution of a case, rather than shutting down and out all of what the defense and mediator are communicating. This principle has also greatly assisted me in truly “listening,” rather than being hell-bent on getting my particular point across, which is essential to my ability to more effectively depose witnesses, interview new clients and even speak with opposing counsel and address the Court.”

Once Upon a Time…

 “Myths are public dreams, dreams are private myths.”

Joseph Campbell

“Everyone is necessarily the hero of his own life story.”

John Barth 1930

Improvisation takes a scene and generates a story from that scene. Lawyers are storytellers. A trial can be thought of as an opportunity for two opposing sides to tell the same story from two different points of view. The side that tells the best story wins the case. The best story isn’t necessarily the most entertaining, but it might be the most resonant, or the most honest, or the most accurate. The connection between the improviser and the lawyer becomes clear when you realize that, like an improvised scene, a lawyer has to incorporate new information and adapt their story as they go forward. Witnesses might give unexpected testimony, new information and evidence can be revealed, the observation of the behavior of those involved in the trial can offer insight that was not available before. A lawyer is called upon to continually adapt the version of the story they are working with as this new information becomes illuminated. The lawyer that is able to incorporate this information into their version of the story and adapt it to their own ends will be more successful.  

It takes time to learn to create an acceptable story while playing this game, and the challenge lies in the cooperation. Improvisation isn’t just creating a story from scratch, it is creating a story from scratch cooperatively with other performers. It is this added challenge that makes it a specialized skill. Improvisers must learn to accept and incorporate the story additions of their partners on stage, and in some cases the audience. This is what makes improvisation such a specialized form of storytelling.

Challenge the Status Quo

 One Juror’s Story:

“One particular trial stands out in my memory, especially the difference between the prosecuting and defense attorneys. The defense attorney spoke first.  He was calm, relaxed, looked the potential jury members in they eye and smiled. I liked him immediately. The prosecutor spoke next and barely looked at us. He stuttered. He frequently referred to his notes. He was fidgety and uncomfortable and tense. ‘Oh boy,’ I thought, ‘this guy is going to lose his case.’  He was obviously prepared, he was organized, and it seemed that he was following a plan for the trial. He was also impossible to listen to for more than a minute.  Here was some one who spent 6 years in law school, passed the BAR, earned his legal degree, and yet he didn’t have the communication skills to back it up. He was like a surgeon that couldn’t hold a scalpel steady.”

Improvisers have their own vocabulary of terms specific to their craft. Improvisational guru Keith Johnstone was frustrated with the robotic stiffness of some performers when he realized they were not using the natural social skills on stage that they used in life, such as a concept called “Status.”  Johnstone defines Status as 

“The conscious manipulation of our level of dominance. . . 

Status is not confusing so long as we understand it as something we do, rather than our social position; for example, a king can play low status to a servant, while a servant can play high status to a king.” 

1. Impro for Storytellers

Status is taught by encouraging students to focus on specific physical or verbal behaviors. A teacher will direct one group of students to maintain eye contact at all times, while another group tries to make eye contact, but immediately looks away if they actually catch someone’s gaze. This focus on behavior when teaching and learning status is important, because status IS behavior. Most people only have a narrow range of status strategies that they have learned to be effective, and that have been reinforced by their environment or those around them. In addition, there are many people who are mistaken about how they are presenting themselves. Having a greater and more fluid understanding of status allows people to adapt to more situations, and to be more aware that they are presenting themselves as intended.  

In a recent class, one of the trial lawyers objected to learning the concept of “status” as a means to persuade. He felt that learning status techniques felt artificial and insincere, and that the point of learning these skills was to pretend to be some one other than himself. It was an illumination to him when the instructors explained that these skills are not for pretending to be someone else, but to allow you to more accurately present who you really are. Many people are unaware of how they present themselves, and it is difficult to get accurate feedback from those around us. Status forces us to become aware of the face we are presenting to others, and by making it into a game students become aware of the strategies that have become habits, and are able to learn new strategies.

Being aware of the status one is projecting is especially important for lawyers. The lawyer is frequently placed in a position of authority over their clients. Most people don’t deal with lawyers on a regular basis, and when they do need a lawyer it is usually because they are faced with difficult circumstances that only the lawyer with his or her specialized knowledge can help them with. This creates a status gap between the lawyer and his or her client that can be more easily overcome by someone who is trained to observe the status another person is presenting and to match it.

A trial lawyer is called upon to perform. Lawyers work hard to be certain they are armed with the most accurate and substantial facts and logic before presenting their case. When they do present their case, however, they must perform. They must communicate their point of view clearly, effectively, and in some cases sympathetically. There is a danger for any person who performs regularly that one’s performance starts to be shaped subconsciously by their audience. Learning and observing status is a very effective way for lawyers to become aware of their status habits. These habits might serve a lawyer well in their career, but it is always better to be aware and to have a range of choices.

A Few Closing Thoughts

We have taken the basic concepts of the practice of improvisation and, by modifying and creating new games and exercises, tailored them to the practice of law.  Our course provides a laboratory to work on the unique challenges of trial attorneys in a safe and supportive environment, without the high stakes of an actual trial or negotiation. The students have had practical opportunities to role play – for example, to present mock opening statements, conduct voir dire, and cross-examine difficult “witnesses” in the classroom setting.  Afterwards, through discussion and coaching, the students gained valuable insight into how they come across.  

Who knew improvisation had so much to offer the legal profession?  Let’s review: it improves communication and creative problem-solving skills, encourages thinking outside the box, helps to overcome fear and stumbling blocks, builds dynamic presentation and storytelling skills, increases authenticity and spontaneity, nurtures innovation, reduces negativity, and increases cooperation.  Not bad, for a seemingly silly endeavor. 

So perhaps the next time someone you’re in a trial, mediation or deposition, instead of saying “No, but….,” you might try saying “Yes, and…” instead and see where that leads you.

————–

Jeffrey Krivis is one of the pioneers in the field of mediation, and one of the most well known and highly respected mediators in California. He is the author of “Improvisational Negotiation: A Mediator’s Stories of Conflict About Love, Money and Anger – and the Strategies that Resolved Them.”  Brian Breiter is a civil trial lawyer with 13 years experience in the area of Plaintiff’s Personal Injury.  He is also an improvisational actor at the ACME Theatre in Hollywood.

The Mind of the Advocate in a Product Liability Mediation

Understand Your Constituencies

Resolving a product liability case involves the skillful handling of numerous constituencies, all of whom have an interest in determining whether your case gets settled or tried. These constituencies include not just the client(s), but the defense lawyers, the court, the mediator, your partner(s) and anyone else who has an interest in the outcome. On the one hand, you have the awesome responsibility of managing the expectations of a person who has gone through a catastrophic and life changing event, and whose future you hold in a delicate balance for what could be a lengthy period of time.  You then walk the tightrope of navigating a court system which has let people like your client down in other similar circumstances, while concurrently keeping aggressive manufacturer lawyers in a frame of mind to recommend a reasonable settlement to your client. Understanding what is important to your constituency is the first step in settling the case, and occurs as soon as the client walks in the door.  It continues through every phase of the litigation leading up to the mediation session and involves the same analysis a defendant goes through in managing the risk.

Putting A Value On The Case

The negotiation of a products case begins the moment you put a price tag on its value. This usually occurs the day you meet the client, but is a fluid concept and must be reevaluated at every step of the litigation. The price tag will be your compass for how you invest in the case, and often becomes an unrealistic goal of what you should achieve on the case. This is where trial lawyers create their first obstacle to settlement. The value you place on the case and the ultimate settlement number are often very different, and the reason for that difference will usually unfold as the evidence in the case develops. This “ideal” value is tantamount to having a best case scenario driving your every move. It’s like looking out at the horizon. You can look out forever and never see the end. It is impossible to reach, generally exists only in your mind and becomes a mental construct for the ultimate negotiation in the case. When you as a trial lawyer send a signal to the other side that you are looking out at the horizon on this case, the settlement result is often failure, frustration, disappointment, predictability, depression and impasse. Before you have even come to the negotiating table you might have developed a huge “gap” between what is a fair and actual result and the ideal outcome that has been delivered in your messages to the other side.

When the defendants see the plaintiffs as trying to achieve their ideal result, they have no choice but to commit substantial resources toward defending the case in order to prove you cannot achieve your ideal. A negative cycle begins to occur as you continue to invest resources to justify your decision to seek your ideal outcome and the costs of failure rise. You can’t change strategies at that point because it would be a sign of weakness. Both sides are now involved in a cycle of taking irrational risks by investing more financial resources into a case in which risk could have been managed far better. That is not to say that putting a value on the case is not a good idea. We do it on every case. The key is to do it in a way that sends clear messages to the other side that an ideal value will not trump a realistic or fair outcome.

Send Clear Messages

Sending clear messages about the value of your case that are not susceptible to multiple meanings will lay a strong foundation for future negotiations. That is a complex task, particularly when it is coupled with the numerous constituencies that have to be managed. It might be harder than trying a case, which is structured, organized and fairly easy to implement. The objective of the advocate in mediation is to balance all the messages that are being sent so that you have a shot at a sizable outcome while preventing the defendants from escalating their commitment to proving you are wrong. Here are some strategies on how to do it.

Setting the Settlement Stage Early 

Each piece of information that you disseminate reflects upon the anticipated result, and will be critical in managing the gap between the ideal result and a fair outcome. Every communication with opposing counsel sets the expectations and lays a foundation for the negotiation. The defense will no doubt document in their evaluation of the file every statement, inference or reference you make that bears on an assessment of the case. In order to manage the gap correctly, it is necessary to engineer the negotiation in advance of the mediation session. An engineer applies technical and scientific knowledge to design and implement processes that achieve a desired outcome or find solutions to problems. Before laying the concrete on the foundation, the engineer uses physics and mathematics to analyze the situation and test potential solutions. The process takes place at the beginning of the project and is part of a complex planning scheme that is organized in a disciplined way toward finding suitable solutions to problems. In a products liability case, this requires providing information about your client’s story well in advance of the mediation, not surprising the defendant with a last minute medical report or life care plan on the evening before the formal negotiation is to take place, and then making a policy limits demand. 

Find Your Settlement Champion

Consider the role and responsibility of the other players to this drama. The defense lawyer must ultimately use his skills of persuasion to help bridge the gap between what you want on the case and the price their principal put on the file. Usually the defense lawyer is your champion in the other room and cannot be made to look bad in front of his principal or you will lose your biggest advocate. The principal will want to know that their file is complete before jumping into settlement negotiations or run the risk of criticism by their superior. The wind up that comes before the pitch requires the plaintiff’s counsel to make the job of defense counsel as seamless and easy as possible.

Find the Key Decision Makers

Next, use every opportunity you have to identify key decision makers and their role in their assessment of the case.  In large product liability cases, there is usually a significant self-insured retention which is managed in-house by the manufacturer.  Once a decision is made to spend the retention on settlement, it is unlikely that information will be revealed to the plaintiff’s lawyer.  However, the defense lawyer is likely to send indirect signals to you about who is making the decision on the retention and how that is progressing.  This information will lead to further discussions on whether there is insurance and to what extent the insurer has been fully informed about the exposure on the file.  Usually you can unlock this information through the first set of interrogatories which will open the door to a discussion on the availability of insurance and identify who needs to participate in the settlement discussions.  These discussions should take place early on in the case and well before the matter is set for mediation. 

One simple way to get a better understanding about the decision making process is to schedule a Person Most Knowledgeable deposition early in the case.  While the PMK deposition will give you a quick assessment on liability, the underlying clues that are revealed from the deposition will give you a sense of the world view of the defendant.  For example, is this a company who has taken hard line stances on other cases as a matter of principle, so that they do not draw additional lawsuits?  Learning the number of claims that have been filed against the company involving the product in question will lead to a better understanding of the defendant’s worldview on settlement.  This requires reading between the lines and looking for information that is not necessarily apparent from the surface.  A computer bulletin board or listserv search will provide further understanding about the way this company views settlement.  

The Pre-Mediation Conference

Jumping directly into a full blown negotiation is not always the best approach in a products liability case.  There are a few key things that you can do to create a productive negotiation:

1. Steer the case to a mediator who is accustomed to dealing with large numbers

This type of mediator is in high demand by both the plaintiff and the defense because he is able to identify where the minefields are in a negotiation and direct the parties around those obstacles even when it appears that the mediation is helpless.  Mediators who are exceptional at settling large cases create value for both sides through providing leadership.  Parties walk into the mediation room often confused about which approach would be helpful in their negotiation.  Sometimes they don’t have a clear sense of how the other side views a fair outcome and they are looking for the mediator to provide direction.  Leadership is the capacity and the skill of giving other people direction so they can start moving in a particular way.  The way good mediators provide leadership is by showing the parties where the opportunity is that is better than trying the case.  

An example of providing leadership in a products liability case is when the mediator suggests a pre-mediation conference with each side separately in order to help discern what the potential barriers are toward settlement before the parties invest huge resources in simply showing up to the mediation hearing.  This involves providing each side with a certainty in the process and generating confidence about going in the direction the mediator is suggesting.  The mediator is actually developing trust and rapport with the parties in order to give them a sense of certainty.  Doing this before the mediation occurs in a products liability case is critical to success.  

Finally, selecting a mediator who understands how to show parties new tools for problem solving and new ways to think will add to the productivity of the session.  Before stepping into the mediation room, the mediator will help design a structure for dealing with the future by anticipating some of the barriers that occur in a typical negotiation.  For example, if a layer of settlement authority resides on the east coast and the mediation is going to occur on the west coast, the mediator can frontload the possibility of having someone available in an after-hours discussion in the event the case justifies such an effort.  Waiting for the mediation to occur before making such a determination will definitely result in failure.

2. Does the mediator have style?

A good mediator who shows leadership from the beginning is able to operate in a style that is reminiscent of a modern day politician.  Author George Lakoff in his book, “Don’t Think of an Elephant” discusses political styles in terms of a “strict father” versus a “nurturant parent” image.  A simple review of the styles of former president George W. Bush (strict father) and president Barack Obama (nurturant parent) contrasts these two approaches.   In the strict father approach, the viewpoint is that there will always be winners and losers and that people are born bad and have to be made good.  When someone does something wrong, they have to be disciplined and learn not to do it again.  This directive type of approach has its place in mediation but never at the beginning of a session, as it will inevitably alienate one side.  Judges who are required to conduct settlement conferences in court have success with this style because of the inherent pressures the court imposes on both the judges and the litigants to move a case within 12 months.  The nurturant parent approach focuses more on empathy and responsibility and tends to provide protection to the parties so that they are not put in a vulnerable negotiation position.   The focus is on trying to fulfill the objectives of each party.  This approach tends to take more of a moral responsibility to ensure that even in the worst possible scenario where the parties are far apart, they don’t leave the mediation session without a game plan for success. The nurturant parent approach offers suggestions on how to proceed, while the strict father tells people what his opinions are no matter how unreasonable they might be.  

The problem some trial lawyers have in setting the stage for the mediation is that they think they need a strict father mediator who can “tell the other side what the case is worth.”  The reality is that the two styles are not mutually exclusive.  Successful mediators who handle large product liability cases move across the continuum of these styles in such a way that creates movement at every step of the negotiation.  Even when it appears that everything is completely locked up, the parties will have a sense of hope.  

3. Do a “Show And Tell” On Damages

Assuming you have successfully found a mediator that has handled large dollar cases and has the ability to move within the different styles described above, do not immediately schedule the mediation.  While this is counterintuitive, discuss with the mediator the possibility of scheduling an abbreviated session in which the plaintiff does a show and tell for the decision makers.  Many lawyers try to short-circuit this by jumping into the negotiation phase of a mediation and making a large demand, expecting to be reciprocated immediately.  Even sophisticated defendants who are accustomed to defending large product liability cases need to have a better sense of understanding about the value of the case before they react to a demand.  The “show and tell” conference is helpful in that the pressure is taken off of you and the client to reach a settlement on that date, though it does give you a chance to demonstrate for both the defense and your client the nature and extent of the damages and the type of forceful commitment that you have in the case. 

Remember that every negotiation is a communication process used to resolve disputes or make a deal.  If you bypass this phase you are likely to fall into a minefield right away.  Even though both sides generally know what to expect from the show and tell, it gives the defendants an opportunity to digest the case privately and in person rather than through litigation reports or by phone.  This face-to-face time is important for the defense counsel in that it allows him to gauge how much room he has in articulating a value for the case such that he doesn’t get resistance from his client.

David Ball, in his treatise “On Damages,” discusses getting the jury committed early on in the trial to numbers that they can accept if there is liability.  The same holds true for negotiating a products liability case.  If your adversary agrees with the range of your damage assessment, then it will simply be a risk analysis on liability to come up with a fair settlement amount.  

The show and tell session also allows a mediator to diagnose where other constraints to settlement exist, such as in a multi-party case where coverage disputes exist or defendants typically point fingers at each other.  If so, the mediator may take the opportunity to conduct a defense-only mediation for purposes of apportionment.

Another approach at the pre-mediation conference, or show and tell, is to ask the defendant the question, “What do I need to provide to you to help you fully assess this case?”  Following such a question, the defense lawyer will likely reveal something about his client’s assessment of the case, or at minimum, a way to streamline the exchange of information so that a case value can be discussed. This leads to the next conversation, which could proceed is as follows:

“My assessment of the case is that it has a verdict value of between $6,000,000 and $8,000,000 depending on the loss of income potential.  I realize we are going to mediation and my client will be fully conditioned on the value of settling now versus wading through an appeal and the commensurate emotional challenges that go with that.  I will come in with a demand below the verdict value but you need to know that my demand will not be designed to meet half way. I will do everything in my power to be as reasonable as possible with you.”

You have accomplished two things with this simple question. First, you have opened the door to allowing your adversary an opportunity to reveal what his principal requires to get the case in settlement mode. Second, you have made it possible for your adversary to discuss the case value without having his principal look over his shoulders. This will likely create a more realistic assessment with less posturing. Simple questions such as this can make a big difference in how you ultimately approach the negotiation that occurs at the mediation.

The Negotiation Game Plan

By now the preparation should be complete and you should have a sense of the parameters of settlement. The mediation should be fairly straightforward as the parties expectations have been vetted long before the formal mediation occurs. If not, you’d better hope that the mediator can pull a rabbit out of his hat. This is where having a game plan for creating movement in the negotiation is critical.  That plan starts with an analysis of the other side’s case in an objective way. Following that analysis, the negotiation dance will begin, but your demand will likely be less symbolic and more substantive than the usual inflated approach to beginning a negotiation.

The purpose of the traditional negotiation dance is to get to a point where decision makers can put their best settlement numbers on the table and pull the trigger one way or another.  Much of the time the mediator is attempting to create simple movement in the process leading up to this moment.  At this point, tension is created and both sides need to find a release valve either in making an important concession. The turning point that will generate an outcome is what has been described by one author as the “seductive now moment.” This involves the idea of “instant gratification,” where litigants have the choice to seize rewards now or be patient for rewards in the future. A good mediator will bring both parties to this moment so that a bona fide opportunity for settlement can be explored. 

The reason that some litigators pay more or receive less to settle a case is that people tend to spend more for what we want now (“seductive now moment”) at the expense of things we want in the future. People tend to discount the future in exchange for instant gratification in the moment. While there is nothing wrong with this approach to settlement, it could lead to an inadequate result for both sides if not monitored closely.  A mediator who has handled significant products cases will pay close attention to the timing of the moves, and give the parties room to go slowly or move faster in the negotiation, depending on their objectives. Negotiating slowly could result in a temporary adjournment of the case with no settlement, but could also lead to a better outcome. At the same time, giving the parties this opportunity could also result in one side or the other making a determination that early settlement is worth either paying more or discounting more. 

Coming In For A Landing

In all likelihood, the negotiation has reached a stalemate, where either both sides have put their best numbers on the table, or at a minimum the numbers have been quantified so that the parties have a good understanding of what the other is willing to do toward settlement. The mediator has several tools available at this point to close the gap. Here are a few to consider:

1. Check for higher authority

See if the defense is willing to check with their superiors to determine whether they are prepared to make one more concession provided the mediator can assure them it will settle the case.

2. Try the “what if” approach

Float trial balloons to see if the other side will agree to a number somewhere in the gap. This is usually handled by the mediator but can be suggested by either side.

3. Consider a direct conversation between decision makers

Yes, direct contact sometimes does work, particularly when the parties are close to settlement. At this point the baggage of posturing has been placed on the shelf and there is momentum to bring the plane in for a soft landing. Having a joint meeting for this purpose is often helpful.

4. Invite the mediator to make a recommendation

This approach is helpful but often misused. Parties who rely on a mediator to make a recommendation sometimes play their negotiation to that final move and ask the mediator to propose something that fits their goals. This puts the mediator in the awkward position of challenging his impartiality. If a mediator is willing to give a recommendation, it is done with a pledge to both sides that the responses will not be revealed unless everyone says “yes” to the proposal. This pledge insures that the parties will not be penalized for revealing their willingness to follow the mediator’s suggestion.

5. Ask for a meeting with just the lawyers

Using the goodwill that you have built up over the course of the case could allow for one final move in which your counterpart agrees to find more resources from his principal. Do not underestimate the value in building bridges early in the case, because they might be used as currency during mediation.

Conclusion

Approach every products liability case in a dual track system, organizing the case for trial and planning your settlement strategy from the beginning. This will generate the best opportunity available for your client to settle the case, while maintaining an aggressive posture on the litigation front.