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Peacemaker continued; last page

Creativity

Don’t lock yourself into predictable and tired patterns of negotiation. Sometimes the standard “tit for tat” negotiation (in negotiation parlance referred to as distributive bargaining) just won’t work. A good mediator will be creative in looking at alternatives. You should be open to alternative approaches and work with the mediator in designing them.

The key, from a mediator’s standpoint, is to avoid having the parties lock into numbers until there is a much clearer understanding of the parties’ interests and then look for approaches that will lead to an acceptable settlement number. Conditional offers, brackets, and settlement ranges can lead to an acceptable number or at least a realistic settlement range.

Sometimes a settlement can include non-monetary aspects. In employment or business cases the possibilities are endless. Even in PI cases there is room for negotiating changes in corporate policies, product improvements, recalls etc. The key is to think about the interests of your opponent and whether there is something that can be done to accommodate them.

About Bottom Lines

I don’t want to know your bottom line. My advice to you is never tell your mediator your bottom line. Doing so only serves to draw a line in the sand that you may regret later. You can use all sorts of words to say you’re close, or this is painful, or whatever, but avoid describing a bottom line. Oftentimes you don’t mean it anyway. When you’re in the “who’s going to blink first” stage, do you really mean you won’t shave a few bucks to get it done?

Final Thoughts

The biggest mistake I see trial lawyers making in mediation is treating it as an adversarial process rather than a cooperative one. We let our egos get in the way, sometimes to our client’s detriment. Does this mean that you shuffle through the mediation and acquiesce and surrender to get the case settled? Of course not. But try to stifle the hyperbole and work in a cooperative manner to resolve the case. If that fails, there is plenty of time for aggression later.

Peacemaker or Warrior?

Perhaps my greatest lesson is that there is a time to be a warrior and a time to be a peacemaker. The best advocates for their clients are those that recognize and appreciate the difference.

Jeffrey P. Foote

October 2008. This article first appeared in the Winter 2007 edition of the OTLA Trial Lawyer. It has been updated and is reprinted with their permission.

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			Peacemaker continued; last page Creativity Don’t lock yourself into predictable and tired patterns of negotiation. Sometimes the standard “tit for tat” negotiation (in negotiation parlance referred to as distributive bargaining) just won’t work. A good mediator will be creative in looking at alternatives. You should be open to alternative approaches and work with the mediator in designing them. The key, from a mediator’s standpoint, is to avoid having the parties lock into numbers until there is a much clearer understanding of the parties’ interests and then look for approaches that will lead to an acceptable settlement number. Conditional offers, brackets, and settlement ranges can lead to an acceptable number or at least a realistic settlement range. Sometimes a settlement can include non-monetary aspects. In employment or business cases the possibilities are endless. Even in PI cases there is room for negotiating changes in corporate policies, product improvements, recalls etc. The key is to think about the interests of your opponent and whether there is something that can be done to accommodate them. About Bottom Lines I don’t want to know your bottom line. My advice to you is never tell your mediator your bottom line. Doing so only serves to draw a line in the sand that you may regret later. You can use all sorts of words to say you’re close, or this is painful, or whatever, but avoid describing a bottom line. Oftentimes you don’t mean it anyway. When you’re in the “who’s going to blink first” stage, do you really mean you won’t shave a few bucks to get it done? Final Thoughts The biggest mistake I see trial lawyers making in mediation is treating it as an adversarial process rather than a cooperative one. We let our egos get in the way, sometimes to our client’s detriment. Does this mean that you shuffle through the mediation and acquiesce and surrender to get the case settled? Of course not. But try to stifle the hyperbole and work in a cooperative manner to resolve the case. If that fails, there is plenty of time for aggression later. Peacemaker or Warrior? Perhaps my greatest lesson is that there is a time to be a warrior and a time to be a peacemaker. The best advocates for their clients are those that recognize and appreciate the difference. Jeffrey P. Foote October 2008. This article first appeared in the Winter 2007 edition of the OTLA Trial Lawyer. It has been updated and is reprinted with their permission. page 4/4
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