Thursday, November 5, 2009

A Mediator’s Prayer

Lord, grant me the imagination to think outside the box and the wisdom to keep from going off the rails. For the one fosters innovative solutions, while the other leads to train wrecks.

One of the benefits of experience — a/k/a learning from your mistakes — is that it helps you to tell the difference between the two. And one of the things I have learned from experience over the years is that new and "improved" approaches are not always appreciated. Stepping out of familiar territory into the unknown is generally perceived to be risky. People engaged in mediation who are charged with protecting other people’s money (e.g., attorneys and claims reps) are generally reluctant to do risky things with it. After all, they are usually trying to settle a case to avoid risk, not incur more!

For most lawyers, negotiating about money is familiar territory. In tort mediations it’s not always only about the money, but it usually is mostly about the money. Insurance claims reps are primarily interested in: (a) paying the plaintiff something (not too much, please); (b) stopping defense costs; and (c) closing the file. Plaintiffs’ attorneys are interested in: (a) getting a fair price for the case; (b) keeping time and expenses down; and (c) closing the file.

Injured plaintiffs look at things somewhat differently. They are, to be sure, interested in the same things as their attorneys, but they also desire a modicum of justice from the process. And it is this difference where the ability to think outside the box may be most useful. Depending on the strength of the desire for justice — which the liability carrier isn’t usually focused on — pure money negotiations may or may not be enough.

But if the negotiation is clearly one for "just money," too much emphasis on outside-the-box thinking may be counterproductive. If the mediator (perhaps out of boredom) tries to get too innovative, the participants may resent it as a distraction. Rather than moving the parties toward settlement, the mediator who gets too fancy risks discouraging everybody and causing the negotiation to end without a settlement.

On the other hand, when the parties have gone as far as they can go with money negotiations, that is when imagination can and should come into play. If there is a gap between "last and best offers," the mediator and the parties, rather than saying, "well, that’s it, then," packing up and going home, ought to explore things further, looking for ways to maximize value to one side, while minimizing costs to the other. Will a formal and public apology (as opposed to only vaguely expressed remorse) supply value to the plaintiff without costing the defense anything substantial? Will a structured settlement meet some of the plaintiff’s financial needs, while keeping the defense outlay within the budgeted parameters?* Will funding a health insurance policy allay the plaintiff’s fears of being without adequate medical care in the future?

Done right and at the right time, a little out-of-the box thinking can help achieve a settlement, while avoiding the "Casey Jones" syndrome.

* Consider the example in "Show Me the Money!" posted July 18, 2008.


Vickie Pynchon said...

Thanks for the mediator's prayer John. When I'm thinking the dispute is "only about money" I remind myself that the reason people and businesses seek out legal counsel is because they believe they've suffered an injustice. I find asking open ended questions about the unfairness of the parties' situations helps move us beyond impasse on "pure money" issues. I also find asking the plaintiff what they intend to do with the money is incredibly helping in deconstructing the dollar back into what the dollar can buy, also a great impasse breaker. Often, the plaintiffs have never told their attorneys what they "really want." Although it was their attorneys who originally monetized the injustice, everyone has forgotten that by the time they reach the mediation table. The attorney often believe his own client is "only in it for the money." Just as in deposition practice, I find it counter-productive to "hunt" for information by asking for it specifically, i.e., "would an apology help?" Rather, I find asking open-ended questions, particularly WHY to be the key to open the door to resolution. Have a great thanksgiving and keep on blogging on! Best, Vickie

John Lassey said...

Thanks for your insight, Vickie. Given that nobody reaches agreement unless they value what they get more than what they give up, even pure distributive mediations must be thought of as creating value. John