On MEDIATION In my mediation practice, I see many techniques a lawyer might use in order to represent a client effectively and reach settlement. The following techniques may be especially useful in moving beyond impasse: Look for a Solution that May Not Involve Money This is one of the most common and useful negotiating techniques and comes into play when the party being asked to pay money either has none or refuses to pay. Can that party provide services in lieu of money? Would an apology help? Do the parties have other disputes which could be resolved as part of a package? Brainstorm About Solutions Suggest solutions that would be acceptable to your client and ask opposing counsel to do the same. This technique is useful when mediation negotiations have broken down but the parties still appear to be motivated to settle. Work with the mediator to develop the ideas that are most promising. This is something of a scattershot approach, but the parties very often will begin to develop an approach that leads to a final resolution. Look to the History of the Parties Ask questions to see whether the parties have worked together successfully in the past and whether they might benefit by doing so in the future. Perhaps a settlement can be fashioned around that opportunity. Request Another Joint Session Mediations usually begin with a joint session of all parties and move to separate caucuses with each party. Sometimes, in separate caucus with the mediator, parties describe completely different versions of a key point or incident, and that becomes a stumbling block in the negotiations. Rather than sticking to one position and asking the mediator to shuttle back and forth to look for the "truth," it may be more efficient to request that the parties be brought back together to discuss their positions. Try, at least, to clarify areas of disagreement. Examine the evidence each party can use to back its position. Take 'Time Out' When the discussion gets really heated, ask for time out. Give your client time to cool down and consider the downside of not settling. Ask for Some Evaluation Often a mediator will start out facilitating communication between the parties but, at some point, will provide some evaluation. Discuss the risks of taking the case to trial or arbitration. Requesting such a discussion with the mediator may help you and your client weigh the price of not settling and, in turn, may inspire a creative approach to settlement. Suggest a Meeting of the Warring Individuals Particularly when the parties once were friends or had a good business relationship before the dispute arose, they may need to have a frank conversation to build some level of understanding before a settlement can be reached. This discussion should be facilitated by the mediator and should take place only with the permission of counsel. Since this technique is quite an extreme measure, it requires great tact and should not be attempted unless other options have been exhausted. Break Up the 'Gang' Sometimes a party will be represented by a large contingent, some of whom were involved in the subject project and some of whom may be officers of the company or others with no direct experience in the disputed events. Such a group can make negotiations difficult because they often have developed strong views regarding the case and, instead of hearing the other side's position and reevaluating their own views, tend to reinforce each other in taking the "party line." Suggest that each side be represented by one or two key decision-makers separate from the rest of the group. An appropriate representative might be someone like the company president, who can evaluate the costs and risks of the case and make a sound business decision about settlement. Move the Difficult Expert to the Sidelines Again, this technique requires great tact. Sometimes, one party's expert focuses only on the strength of his or her client's position and makes settlement difficult. This problem may arise because the expert has not yet had to develop the proof to back his or her theories, because the expert enjoys arguing with the expert on the other side, or for a number of other reasons. Whatever the reason, the expert may have a personal agenda that does not encourage looking for practical solutions that might be more satisfying than taking the risk of trial/arbitration. Try meeting without the experts and focus on some solutions that would make good business sense. Exchange Information and Try Again Sometimes the parties will make great progress during a mediation negotiation, but cannot settle because some crucial information is not available. Agree to an information exchange, set a timetable for it, and establish a date for another meeting to try to reach settlement of the case. Often, the very process of an exchange of information will cause the parties to reevaluate their positions and reconsider possible resolutions. Ms. Clairborne
is a mediator and arbitrator on the National Roster of the American
Arbitration Association. |
