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.

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.

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.

Show Me the Money!

Personal injury mediations have a number of characteristics in common which set them apart from mediation of other types of disputes: (a) insurance companies are usually the primary stakeholders on the defense side; (b) typically, the disputants’ only relevant relationship is that of parties to the same lawsuit; (c) the parties are not interested in repairing the relationship, but in ending it; and (d) ending the relationship will, in virtually all such cases, happen when the insurance company writes a check, and the plaintiff deposits it.

Philosophers have decried efforts to reduce human misery to haggling over dollars, but the concept of wergild is firmly embedded in our society. In one form or another, it has been the basis of our Anglo-American tort system since well before the battle of Hastings. Like it or not, this is the planet we live on.

The focus on money, however, does not mean that there is no room for creative value-enhancing ideas in settlement negotiations. Money, after all, has no inherent value; its worth depends on what it will buy. And the value of such "things" is very much in the eye of the beholder. Different people place different values on the same goods and services. These differences, if explored thoughtfully, can often lead to settlement when the parties are close, but not close enough.

For example: years ago, I represented a husband and wife as plaintiffs in an auto accident case. The defendant’s liability was clear, but the injuries were not too serious and resolved within a year or so. The insurance company was not willing to offer enough cash to interest my clients. Rather than give up, the defense attorney and I tried to look beyond the obvious and to find a solution which would benefit the plaintiffs more than it cost the insurance company.

My clients had a young child. Both were employed and, by the time of trial, were earning more money than they ever had before. They did not need more money; what they needed was tax planning. Once my clients’ needs were analyzed, we were able to reach a settlement in which enough money was paid up front to pay my fee, with a little left over for a modest family vacation. The amount remaining (less than $10,000) was used to purchase an annuity that would pay a lump sum in the neighborhood of $200,000 when the couple was ready to retire, or a lesser amount when their child reached college age.

This story should serve as an example of how it is possible to "think outside of the box," even when the case is "only about money."

The Goal of Mediation Is Not (Necessarily) Settlement

To some, the title of this posting will sound like rank heresy. If the goal is not settlement, what is it? Why are we paying this person to shuttle back and forth like Henry Kissinger if we might end the day with an empty sack?

In my view, the primary goal of mediation of a tort case is knowledge, with settlement being a possible byproduct. The idea is to learn whether all sides are close in their thinking on the value of the case. If they are, settlement is likely to follow; if they are not — and cannot be convinced to change — settlement is not likely to follow.

Opposing lawyers who have worked with each other a long time can sometimes "cut to the chase" and determine whether their clients are on the same page without a mediator. For most people, however, the adversary system gets in the way of frank discussion, and the assistance of a third party (i.e., the mediator) is necessary.

I tend to divide most tort mediations into two phases. During the first phase, I try to determine in my own mind whether the parties are actually thinking in the same value range — whether or not their public positions are close. Depending on the facts of the case (and the parties and counsel involved) this process can range from relatively quick to incredibly drawn out. If, in the end, I think the parties really are in the same ballpark, I move the process into phase two and help the parties turn their general understanding into a specific agreement, working to help bridge any remaining gaps.

Where I part company with some mediators is in what I do if I believe that the parties (in their heart of hearts) are not close. In such cases, I do not try to change anybody’s mind or even nudge the parties toward a settlement. It’s their case, not mine. I believe that people should not be pressured in any way by the mediator to change their minds during a mediation. Like most important matters, decisions to settle should not be made until all relevant information has been assessed and each party truly believes that a settlement on the terms available is in his or her best interest. This normally takes time.

If, during the process, the parties learn that they are looking at the case differently, it is appropriate to adjourn the mediation and allow some time for everybody to reevaluate their options in light of new information. Before adjourning, however, the parties should determine what steps need to be taken in the interim before scheduling further mediation sessions. For example, are more depositions needed, or expert opinion necessary to support certain facts being asserted? It is certainly appropriate for the mediator to assist the parties in this endeavor.

Mediation Is a Process, Not an Event

My family has always enjoyed bicycling, and over the years we have collected a number of books on the subject. One in particular, entitled The Bicycle Touring Book, by Tim & Glenda Wilhelm (Rodale Press, 1980), has a passage with a lesson for those involved in dispute resolution. In describing how bicycle touring, with its emphasis on "smelling the roses," differs from traveling by automobile, the authors (on page 177) state: "For them [motorists], it was just another long day behind the wheel on the way to somewhere else."

For many involved in litigation, mediation is just one event on the road to trial. Mediation is often scheduled only because the court says it must be, or because it is on a checklist prepared by somebody else. The mind set seems to be: "Today we are in a mediation mode; yesterday — and maybe tomorrow — we were/will be in a trial mode." While all litigators recognize that most civil cases do settle eventually, a settlement is usually thought of as a byproduct of good trial preparation; mediation is not considered to be central to their cases.

The skeptic will say, "So what? Strong preparation for trial equates to strong preparation for mediation; the two co-exist very well." I would agree with that statement, as far as it goes. What I am advocating, however, is not a dilution of trial preparation, but an expansion of focus.

Instead of focusing exclusively on how evidence learned in discovery will play at trial, I believe that litigators would be well advised to get into resolution mode right from the beginning. Unless a conscious decision not to settle has been made by the client(s), all actions taken — discovery requested, motions filed, etc. — should keep all forms of resolution firmly in mind.*

One useful approach to take would be to modify one’s visceral responses to questionable discovery requests. Instead of automatically objecting on principle (see, e.g., "I Would Rather be Right than . . ."), consider whether providing the information requested might not further resolution, despite the request not having been "reasonably calculated to lead to the discovery of admissible evidence."†

For example, when I first started practicing law, I was assigned by a senior partner in my firm to defend a personal injury case brought by one of the leading plaintiffs attorneys in my state — one who had been practicing for over 30 years. I suspect that if he had wanted to, he could have eaten me for breakfast. Instead, as soon as he received a copy of my appearance, he called me on the telephone, introduced himself, and invited me to his office to look at his file! When I arrived at his office, the file was waiting for me, superbly organized in a private conference room reserved for that purpose. Just about everything I would have thought to request in formal discovery — including both pre and post accident medical records — was included. As I analyzed the material, I realized that we could bypass a lot of the usual time-consuming pretrial activity and cut right to the chase. My opposing counsel’s act of practical accommodation paved the way to a fair and expeditious settlement. I suspect that 90% of personal injury actions could be handled in just that fashion without any of the parties giving up anything important.

* "Resolution," in this context, includes both trial and settlement.

† Fed. R. Civ. P. 26(b)(1).

Driving in Germany

Back in the bad old days of the Cold War, I was stationed with the U.S. Army in Germany. When I first arrived at my unit in 1967, the other guys (no women then) did their best to fill me in on the local culture, so I could avoid branding myself as an ignorant Ami (short for "American"). One bit of knowledge deemed especially essential to my survival was that driving in Germany was not like driving in the United States. German drivers were regarded by the average GI as extremely aggressive. This information, combined with the fact that there was no speed limit on the autobahns, required a different mind set from what I was used to. I was told that in anything smaller than a five-ton truck, I would have to make the local drivers think I was completely crazy in order to get their respect. If I showed fear, I would be eaten! From what I could see during the three years I lived there, most soldiers got the same advice.

Not all civil litigation attorneys believe that mediation sessions give us a chance to "come reason together." Some lawyers in personal injury negotiations act like GIs driving on the autobahn: pedal to the metal; lips curled in a snarl; slightly wild-eyed look. Former President Nixon called this approach his "Madman Theory."* The goal: to terrify one’s opponents into submission with threats of annihilation.

When your opponents start yelling in a mediation, you must determine whether they are losing their temper, or using it. Are they really crazy enough to submarine the negotiations? Or are they simply trying to distract you from learning that their case is not the litigation equivalent of a five-ton truck? Your response should avoid extremes either way. Don’t yell back; don’t cave in. Instead, very calmly suggest a break in the negotiations. After the other side’s adrenaline level (if that’s what it really is) has had a chance to return to normal — and you have had a chance to reassure yourself of the strength of your own case — suggest resuming the negotiations. You will soon learn whether your opponents are serious or not, and will be better able to decide how — or whether — to get the mediation back on track.

* Stanley Karnow, Vietnam: A History (New York: The Viking Press, 1983), 582.