Thursday, December 24, 2009

Fear of Being Outfoxed

"Everybody has to save face, and, whether they have to or not, everyone tries to; it’s one of the basic compulsions of men." John D. Voelker, writing as Robert Traver, Anatomy of a Murder (New York: St. Martin’s Press, 1958), 42.

The above-quoted maxim is especially accurate when it comes to lawyers, and even more so when it comes to trial lawyers. Put simply, trial lawyers hate to lose. They are usually willing to moderate their thirst for victory enough to participate in settlement negotiations, but, when the dust settles, they still like to feel they won by doing better for their clients than the other lawyers did for theirs.

In saying this, I do not mean to suggest that it’s all gamesmanship — i.e., the lawyer who dies with the most points wins — or that we trial lawyers are completely driven by our egos. Of course, given Voelker’s observation, there is always going to be some of that. After all, no lawyer worth his or her salt wants to be snookered. But more important than ego to most lawyers is that our clients hire us to get the best results we can. If we take our clients’ money, we’re expected to advocate.

What’s important to most litigants involved in settlement negotiations, assuming the numbers being discussed are in the so-called "zone of possible agreement" (ZOPA),* is knowing that the other side’s best number has been reached. This is why the cautious back and forth negotiation that we call the "mediation dance" happens, and why most people rarely "cut to the chase" right away. The dance is a necessary component in just about all settlement negotiations. Can you imagine two trial lawyers having the following conversation?

Defense Attorney: My client and I think settlement value is between 200 and 250 thousand dollars.

Plaintiff’s Attorney: That’s about where I put it. Want to split the difference at 225?

Whatever the cause of people’s tendency to hide their hole cards, it’s all part of the adversarial process. It has been with us for centuries, and is likely to be with us well into the future, if not forever. It is one of the reasons why it’s wise for parties contemplating mediation to allow for as much time as possible for the process. I have been in mediations where early negotiation results in substantial movement, but hours are spent thereafter in making only tiny incremental changes. Was such extra time wasted? I don’t think so, because when that sort of thing happens, everyone is virtually certain that the other side has reached the end of its rope — and is satisfied that nobody was outfoxed.

* Defined as "the set of all possible deals that would be acceptable to both parties." Deepak Malhotra & Max H. Bazerman, Negotiation Genius, (New York: Bantam Dell, 2007), 23.

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