Friday, August 22, 2008

Anger Management in Mediation

The best way to control anger in mediation is not to get mad in the first place. And the best way to accomplish that is to come to the table with no preconceived notions or expectations about what the other side is going to do or how long the session is going to take. If you don’t expect anything, you won’t be upset when you don’t get it.

This admonition should not suggest a lack of preparation. As I have indicated in the past (e.g., "To Every Thing There Is a Season"), thoroughly knowing one’s case is crucial to success. But knowing one’s case is not the same as knowing what the other side is going to do.

Some people come to mediation with expectations that are based more on hope than reality. Such folks regard unreasonably high demands or low offers right out of the box as evidence that the other side sees the case so differently that settlement is unlikely. This can be frustrating and often prompts angry reactions — particularly if the parties have allowed only a couple of hours to get the job done. Typical comments are: "They’re obviously not bargaining in good faith!" or "This is a complete waste of time!" or "We might as well end it right now and go home!" or (perhaps worst of all) "I’ll show those cowboys/cheapskates," followed by an equally unreasonable counteroffer.

But unreasonable positions do not always indicate unreasonable expectations. Often the other side is simply trying to find out in what ballpark you think the game ought to be played. Just testing the waters, so to speak. After all, until things shake down a bit, your opponents need to know whether you are more worried about your case than they are about theirs. Most plaintiffs' attorneys, for example, know that if they don’t ask for a lot of money they will never get it.

I generally regard the early stages of a mediation session as a time for testing. Sometimes this phase has a lot of posturing, can resemble a game of "Chicken," and can last for hours before the parties move into settlement territory. For this reason, I have found it best when scheduling mediations to allow plenty of time. Open-ended scheduling is best. When people start looking at their watches, the chances for resolution go down.

When you feel the other side is making unreasonable demands or offers, don’t get mad at them. They have a perfect right to ask for as much or offer as little as they want. If it turns out that they have just been testing you, the case will probably settle. On the other hand, if they really believe in their position and you don’t, the case won’t settle, but nobody will be any worse off for having made the effort. See my earlier post, "The Goal of Mediation Is Not (Necessarily) Settlement," and Chris Annunziata’s on the same subject.

Saturday, August 16, 2008

Don’t Pitch to the Mediator

Remember Milo O’Shea’s character in The Verdict? He played the partisan judge with the Irish brogue who urged Paul Newman to take the offer on the table by saying: "I meself would take it and run like a thief!"

Unfortunately, this is how many — both in and out of the legal profession — still think mediation works. See, e.g., Geoff Sharp’s recent post on mediator blah ... blah . . .. These folks pitch their arguments toward the mediator, rather than the other side. For some reason, they think that the opinion of someone who has only recently been exposed to a brief snapshot of the facts will carry a lot of weight with the opposition.

Such a ham-handed approach often makes the other side respond with its own attempts to sway the mediator, causing the session to become a point-counterpoint debate refereed by the person who knows the least about the case!

The prize that people need to keep their eyes on is making believers out of the opposition. Therefore, it is far more productive for the parties and their advocates to direct their arguments and efforts toward them, rather than to the mediator.

Sunday, August 3, 2008

Lawyers as Peacemakers

Say the word "lawyer," and far more people think of "Whiplash Willie" — the unscrupulous ambulance-chaser portrayed by Walter Matthau in The Fortune Cookie — than of Atticus Finch. Google™ the term "lawyer jokes," and you are rewarded(?) with almost 600,000 hits.

Against this backdrop of popular culture, it may be helpful to remember Abraham Lincoln’s admonition to a group of law students more than 150 years ago:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.*

I was gratified to hear one of my colleagues, Rob Howard of Henniker, NH, demonstrate the other day at a meeting of our local Bar Association’s ADR Section that Lincoln’s advice is still followed. The topic for discussion was how to foster a mediation mind set in the public. He stated that he has been counseling his clients to make peace since he started his practice more than thirty years ago. When he said this, he seemed surprised that the concept would be regarded as anything but obvious. As far as he was concerned, this is what lawyers do.

* From The Collected Works of Abraham Lincoln, edited by Roy P. Basler, Volume II, "Notes for a Law Lecture" (July 1, 1850?), p. 81.