Negotiation News: Volume 3, Issue 6

In this issue, I have a few words to say about problem-solving, and how it relates to mediation.

The Opportunity to Solve a Problem

I attended a seminar a few years ago at which a well-known trial lawyer was speaking. He has been through battles and wars over many years against the largest corporations in the world and has obtained hundreds of substantial jury verdicts against them.

Nevertheless, he began his talk with “I am a problem-solver.”  While he may also be referred to as a “courtroom warrior,” “a fighter for the little guy against corporate America” or any other similar moniker one could think of, I found this to be an interesting way of looking at what he does.

Problem-solving encompasses all areas of our lives, from the relatively mundane (balancing a checkbook, eliciting good behavior from an unruly teen (OK – maybe that one’s complex) to the more arcane (understanding human thought processes or developing a complex algorithm).  Nevertheless, regardless of the type of problem, problem-solving often requires creativity and viewing things from different perspectives.

Seeing litigation not only through the prism of “battle” but from this broader perspective, cases in litigation are simply problems to be solved at all stages, from motion practice, in mediation, or ultimately by and judge or jury.  Maintaining one’s control of a case is one way to solve the problem; releasing that control and handing it over to a judge or jury is another.

In the 1970s, Sadaharu Oh, the all-time home run slugger for the Yomiuri Giants baseball team in Japan, was asked about his approach to opposing pitchers. He replied that he didn’t view pitchers necessarily as opponents or those seeking to get him out; rather he saw pitchers as players who, with each pitch, offered him an opportunity to hit the ball. Thus, each pitch (and Oh saw tens if not hundreds of thousands of them over his career) presented a new and different chance.

In mediation, the disclosure of positions, interests and facts generally runs the gamut from presenting a mediation notebook replete with a full summary of evidence and supporting exhibits to submitting fully confidential briefs. While each case is different, I encourage the parties to send as much information to the other side as possible well in advance of the mediation. Whether mediation involves a relatively open exchange of information between the parties, or a measured one when parties are reluctant to disclose potential trial positions, every piece of information exchanged presents an opportunity for all sides to understand each other and work toward resolution. Each “pitch,” presents a new and different chance.

The takeaway: Take a step back and look at mediation not only as an adversarial event, but as an opportunity to create a solution. Every new piece of information that is disclosed, analyzed and negotiated over in mediation is valuable in driving the case toward resolution. Don’t miss out on the opportunity to show information to the other side and especially, don’t miss out on the opportunity to listen. If we are all in the business of problem-solving, there simply is no better way.

• Reduced Fees For Smaller Cases

In an effort to continue to serve the parties who have cases with claimed damages under $50,000.00 with one plaintiff and one defendant, my fees will be reduced for the duration of the mediation, with no increase after three (3) hours. My half day and full day rates remain the same for cases for cases where the claimed damages in dispute are above $50,000.00 or with more than two parties. Please feel free to contact me to discuss at 818-616-8500 or [email protected].

• Charity

A portion of mediation fees generated will be donated to a charity of your choosing. When booking your mediation, please direct me to the website of your charity.

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].