Negotiation News: Volume 3, Issue 1

In this issue, I’m providing a few thoughts on “managing” negotiations.  Since I’m a baseball fan, I often use the phrase “managing an inning ahead,” and those of you who have mediated with me have heard me use it.  I have found it helpful in getting the parties to think about the overall negotiation, and not get bogged down in what appear to be minor, and ostensibly hopeless, concessions.

ALSO:  If you need last minute help, have a trial date around the corner, and need to take final a shot at settlement, I can be available on short notice.  I’m also working with Tim Corcoran through Last Minute Mediations at 818-616-8500. Please feel free to contact me to discuss at 818-616-8500 or [email protected].

Managing an “Inning Ahead”

Along with the game itself, baseball is a game of chess from the manager’s perspective.  By way of simple examples , the manager may substitute a position player for a pinch hitter who plays the same position but matches up better against the pitcher, or substitute for a pitcher who matches up well against the next batter.  There are dozens of other strategic moves that may have an immediate impact on the game.

But there is often more to it.  With any move the manager makes, he must consider who his team is going to be facing the following inning, and whether he should change or leave in his pitcher and under what conditions.   The manager must also consider dozens of other possibilities including what effect a substitution may have in future innings, lineup consequences, remaining players that can be used and when, etc.

Like the manager (but hopefully with infinitely fewer cigarettes smoked and infinitely less hair rubbed out from under the cap), the mediator’s role is “manage” negotiations.  While the current status of negotiations is of primary importance, the mediator must continually think about what the next moves are, or may be.  When it’s appropriate, I often ask the lawyers and parties to keep the same evaluation in mind. When I ask parties in caucus to “manage an inning ahead,” we often discuss what the other side’s response will likely be in response to their offer or demand that I am about to communicate.  For example, assume the demand is $300,000.00, and in a confidential brief, the defense states that they have evaluated the case at $40,000.00 and no more, but are willing to attend the mediation in good faith.  So in response to the $300,000.00 demand, the defense offers $7,500.00 on a case that has a likely settlement value in the range of $75-100,000.00.  Rather than screaming “insult” or “they’re in orbit” and threaten to leave, I encourage the parties to keep an eye on the bigger picture, and to think about how they might respond to the range of demand or offer that the opposing party is likely to make in return.

I have often found that in cases that require substantive moves by both sides, even if the parties want to spend the first few rounds communicating “message numbers,” this approach encourages the parties and counsel to think ahead.  It also gets us through the “message number” phase a bit more easily, so we can get to the next phase of negotiations.

• Reduced Fees for Cases With Maximum Claimed Damages Under $50,000.00

I offer a reduced fee structure for cases where the amount in controversy is under $50,000.00. Under the former LASC ADR program, cases in which the claimed damages were $50,000.00 or less were eligible to be referred to court-ordered mediation. In an effort to continue to serve the parties who have cases below $50,000.00 with one plaintiff and one defendant, my fees will be reduced for the duration of the mediation. My hourly rate on cases in which the claimed damages in dispute are above $50,000.00 remains the same. Please feel free to contact me to discuss at 818-616-8500 or [email protected].

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].