Negotiation News: Volume 1, Issue 5

For summer, I thought something a bit lighter would be in order.  This article is about communicating with the mediator and with the other side so that both can readily relate to your client’s position and interests. Of course, any and all feedback is always welcome.

Enjoy!

. . . And Now For Something Lighter

Well, it’s the dog days of summer, so rather than writing another heavy article replete with the substance of the last few articles on Mediation Confidentiality and the intricacies of defense tenders under Crawford, I thought we would go in a different direction for August.

I just returned from a baseball stadium tour with my son. It was a wonderful experience, and the trip took us from Chicago through a loop around the Northeast and back. Though the fans in each ballpark we visited proudly wore the colors of their teams, (the Cubs, Tigers and Red Sox being the most notable), the obvious common thread among all of them was a love of baseball.

We are also now well into the XXX Summer Olympics, and my own favorite Olympic sport, swimming, is an excellent (and exciting) example of “the thrill of victory and the agony of defeat.” Yet again, the common human experience that bonds not only the American athletes, but the athletes from all over the world is the love of sport, and the opportunity to be at their best when it matters most.

So what does this have to do with mediation?

When you have the chance to make things real, relevant and human, take it. Every single time.

The mediator’s job of making an early connection with the parties and counsel has been written about extensively. Simply put, any mediator has to establish traction early in anticipation of the inevitable roadblocks and tougher negotiations as the parties get closer to settlement.

But equally important is that the parties must communicate their interests and positions, especially those that hit us on a human level, to each other and to the mediator. In discovery, and especially depositions, the opposing side obtains information through cross examination of the parties and witnesses, and with deponent having been given instructions to only answer the question asked, not to volunteering information, etc.

In mediation however, the parties can communicate their positions in a much more complete and open manner. This can be achieved in a joint session when the situation calls for it. But even when parties are exclusively in caucus without a joint session, they must address issues such as, for example, “How are these injuries affecting me?” “Why is my business partner suing my after all these years, and why won’t he listen to me anymore?” “Being sued by my neighbor has caused my family a great deal of stress, especially since I have done nothing wrong,” etc. Whether the mediator is the conduit of these interests or the parties can find a way to talk to each other, they must be communicated early and often.

Pre-mediation conferences (and timely filed briefs!) often enlighten the mediator as to how counsel and the parties are approaching the mediation. Why not start the mediation before the mediation session and use every opportunity possible to get your message across? Is the mediation going to involve finer points of case or statutory law that exonerate your client? Has the plaintiff denied being treated for the exact same injury six months before the accident? Is the large claim for general damages for an injured plaintiff supportable through evidence and comparable verdicts and settlements? These themes, when applicable, should be communicated beforehand and as often as possible so that the mediator can speak “your language” when conducting negotiations.

These are just a few lighter, anecdotal thoughts for the summer, but ones to keep in mind for your next mediations. Communication of interests in a way we can all relate to can only help in obtaining negotiation success. Whether it’s baseball, the Olympics or negotiations, we all look to something that appeals to our commonality as humans. It’s what makes us truly care. It’s what makes us pay attention.

For those of you who are taking a well-deserved break, I wish you nothing but the best in your down time, and I look forward to working with you in the near future.

Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. He can be reached via telephone at 818-616-8500, at www.judgemediation.com or via email at [email protected].