Author: Jeffrey Krivis

“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.


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.

The Confidential Listener Technique

This is the technique suggested by John DeGroote of Settlement Perspectives which is used as a quick, confidential method to determine proximity of settlement positions. While the technique is situational and can vary with each case, generally speaking each party submits its best offer in confidence to the neutral third party (“the confidential listener”), who informs the parties whether their proposals are within a negotiable range. Generally, and absent specific authorization from the proposer, the confidential listener does not relay one side’s confidential proposal to the other.

The parties will normally agree in advance that if the sums overlap, with the plaintiff citing the lower figure, they will settle at a level that splits the difference. If the cited figures are within a specified range of each other, e.g. ten percent, the parties may direct the neutral to so inform them and help them narrow the gap. If the figures are not within the set range, the parties may repeat the process, or the confidential listener can make a mediator’s proposal.

Here is a form agreement offered by the CPR International Institute for Conflict Prevention and Resolution:

AGREEMENT made    , 2009

between XXX  of  XXX

represented by  XXX   and of


epresented by XXX.


A dispute has arisen between the parties. The parties have agreed to attempt to resolve their dispute through the private process described in this agreement.


Accordingly, the parties agree as follows:


      1.1.  Selection. The Neutral Listener shall be _______________ who has agreed to serve and whose compensation has been agreed upon by the parties and the Neutral Listener.

      1.2.  Submission of Settlement Proposals.

      1.3.  Role of the Neutral Listener. The Neutral Listener will promptly review the settlement proposals submitted by each party and thereupon will inform the parties whether their settlement offers are:

       substantially similar or overlap, or

       within a range which the Neutral Listener considers negotiable.


      2.1.  Confidentiality of Settlement Proposals. Unless the parties otherwise agree, the Neutral Listener shall not disclose the settlement positions revealed by the parties, nor will the Neutral Listener reveal the basis for his/her determination that settlement negotiations should or should not commence.

      2.2.  Confidentiality of Settlement Process. The Neutral Listening process is a compromise negotiation for purposes of the Federal Rules of Evidence and state rules of evidence. The substance of this process shall be kept confidential by all parties and the Neutral Listener. The Neutral Listener shall be disqualified as a witness, consultant or expert in any pending or future action relating to the subject matter of the settlement effort, including those between persons not parties to the settlement effort.


IN WITNESS WHEREOF, the parties by their attorneys have executed this agreement as of the date first above written.


Negotiation Tips and Techniques …

Check out Jeff’s latest article in The Plaintiff’s Magazine entitled, Setting the Stage of Negotiation.

This story  is for you if: 
• You show up to mediation and have never discussed settlement numbers with the defense;
• The defense has not revealed to you their assessment of liability and damages; or
• You are often disappointed at the defendant’s inability to settle in a reasonable range at the first mediation.

Three Quick Tricks for “Reading Minds”

Courtesy of Jeffrey Krivis, author of Improvisational Negotiation: A Mediator’s Stories of Conflict about Love, Money, Anger—and the Strategies That Resolved Them (Jossey-Bass/A Wiley Imprint, 2006, ISBN: 0-7879-8038-2, $35.00).

Knowing what people are thinking and feeling can help you build rapport and, eventually, resolve conflicts. Here are a few tips from master mediator Jeffrey Krivis to get you started:

• Notice body language cues. People can tell you a lot about what they’re thinking and feeling without ever saying a word. When someone fidgets, fails to make eye contact, or clears her throat a lot, she may be feeling insecure. When she turns her body away from you, keeps her arms crossed, and displays facial tension, she is probably on the defensive. When she casts her eyes downward or to the left, she is most likely deceiving you.

“Read up on the basics of body language,” suggests Krivis. “Most people give away a wealth of information about themselves without realizing it. It’s very hard to fake body language. But you don’t have to make an exhaustive study. Just start paying close attention to what people do with their hands, eyes, and body in everyday conversation and you’ll quickly start to pick up on which cues go with which situations.”

• Listen carefully to determine what NLP “type” a person may be. Then speak his or her language. According to the principles of Neuro-Linguistic Programming (NLP), there are three types of people: visual, auditory, and kinesthetic. When you can determine what category a person falls into, you can deliberately build a rapport with him or her.

– Visual people say things like “Can we look into this further?” and “I am getting a clearer picture now.”

– Someone with an auditory focus might say “I hear you loud and clear,” or “Now that you’ve voiced your opinion, may I tell you what would resonate with me?”

– Finally, a kinesthetic person might say, “That feels right to me,” or “I’m not grasping what you’re telling me.” Interestingly, if a person seems emotionally “shut down” (like the plaintiff in tip three of the press release), he’s probably a kinesthetic person as well.

“The words people use reveal a lot about how they make sense of the world around them,” says Krivis. “Determine what NLP focus a person has and you can connect with her by using the same words and phrases that she uses.”

• Use props to put people at ease and draw them out. In his office conference room, Krivis has an electric guitar signed by Bob Dylan. When a person immediately notices it and begins enthusiastically talking about it, Krivis knows he’s an “auditory.” “Visuals” are drawn to his crystal ball or his Sandy Koufax baseball card. Finally, “kinesthetics” seem to be snared by his pictures of President John F. Kennedy (who tends to evoke strong emotion in people) and a touching photo of a black person and a white person holding hands at the funeral of Dr. Martin Luther King, Jr.

“These props serve several purposes,” says Krivis. “Yes, they help me identify a person’s NLP focus so that I can bond with him more effectively and hopefully encourage him to shift his position. But also, props simply serve as icebreakers. Whether you’re a mediator or not, it’s a good idea to put people at ease or make them laugh. It’s just a matter of social grace.”

Dealing With Lack of Authority

This story is for you if . . .
• You suddenly find there is a lack of authority at mediation;
• You have negotiated to a point of no return;
• You are asked by the mediator to take what they have or go through
additional company roundtables and/or depositions.

The myth:
Defendants say they have authority to deal.

Why it’s misleading:
Authority is limited because real decision makers are rarely at the defense table.

What to do
Fully expect that the final decision maker will not be at the negotiation table — and don’t be afraid of it. This is the way corporate decision making occurs and has proven to be a very effective way for bureaucrats to assess risk. Demonstrating frustration at the other side will only throw fuel on the fire. Instead, use the mediator to gather intelligence early about the ability of the company representative to close the case in a range that makes sense. The mediator will be in a position to determine whether the company representative can make a phone call that day, if necessary, and obtain additional authority. This is important for the mediator to do early on and before the company representative reveals their last number. The reason it is important is that it allows you to collaborate with the mediator in order to define the negotiation process. In so doing, it provides you with a game plan as to how aggressively to negotiate. So, if the company representative has the ability to make a phone call, you are more likely in a position to obtain closure on that day and can be more aggressive in your efforts to settle. If the company representative does not have any further authority, the mediator can give you several other alternatives, including:

• Accepting the amount that is available on that date;
• Keeping the negotiation open for a period of days so that the mediator can follow up with the decision makers;
• Allowing the mediator to make a recommendation in a range that both sides can find appealing.

In short, don’t get angry at the defendant for using the higher-authority tactic. It can be reversed
and utilized properly, provided that it is identified and recognized early on and that you use the mediator to gather intelligence.