Carr Negotiation and Mediation Spring 2015
1/13/15
· Pre-mediation Considerations – Stages of Mediation Process
o Initiation
o Preparation
o Introduction
o Problem statement
o Problem clarification
o Generation and evaluation of alternative
§ Bracketing
§ Mediators move money brackets
o Selection of alternatives
o Agreement
· Initiation and Preparation
o How does mediation come to be?
§ Volunteer to mediation
§ Court-ordered mediation
o Preparation
§ Balance of power
§ Sources of pressure
§ Motivating pressures versus hindering pressures
· Client’s privilege and what they say
· Keep quiet about what you want/don’t want.
§ Money issues
§ Personal issues
§ Limitations of authority to settle
· Introduction
o Conducted by mediator
o Introduction to mediation process and format
o Introduction to mediator’s experience and neutrality
o Reinforces confidentiality
· Problem Statement
o Parties discuss their issues and positions
o Complaining party typically begins by telling their story first
o Mediator’s role at this stage is learning about the parties
§ Asks neutral, open-ended questions
§ Watches for non-verbal signals from each side
§ Uses positive listening techniques and summarizes story
o Repeat with opposing party
· Problem Clarification
o Mediator attempts to isolate issues in dispute
o Happens through caucuses (separate)
o Each party will reveal issues or acts that they would not reveal directly to other party
o Mediator is under duty of confidentiality
· Generation of alternatives
o If previous efforts are successful, agreement may start to take shape
o To get here, mediator creates doubt about validity or strength of each party’s bargaining position
o Asks parties to come up with alternatives
§ Each side discusses alternatives
§ Re-negotiate alternatives
o Finally: Agreement reduced to writing.
· Primary and secondary reasons for using mediation
o Resolve part or all of the case
o E.g. – personal injury mediations
§ If mediation is court-ordered and insurance company believes no liability, mediation may be short-lived
§ If liability is not primary issue, then the mediation will be about damages and amount of money necessary to settle the case
o Narrow issues
§ For defendant, it can be beneficial to narrow the kitchen sink complaint
§ Expensive to litigate the process
· Motions to dismiss
· Motions for more definite statement
· Motions for summary judgment
· Motion in limine
o Test theory of claim or defense
§ Sometimes, it is unknowable how a particular tactic or theory will play outside your office.
§ Will be able to observe and learn your opponent’s opinion of your theory.
o Evaluate case as it moves through discovery
§ Learning something during the discovery process that strengthens or weakens your bargaining position or likelihood of success at trial.
o Instead of continuing discovery, initiate mediation.
o Form opinions about the strength of your opponent as a witness
o Alternatively, perhaps your client would not make a good witness
§ Non-verbal clues during discussion
§ Is the potential witness/party a good speaker or are they convincing?
§ Do they lack credibility?
§ Is the opposing position exploitable to a jury?
· Negotiation
o Goals of negotiation
§ Vast majority of matters will eventually involve negotiation
· Civil matters
· Criminal matters
· Real estate matters
o Categories of negotiation
§ Transactions
· Renting real estate
· Creating business joint ventures
· Buying and selling goods and services
· Negotiation – goal of negotiator
o Communicate effectively with the other side
§ Threats that your client will take certain actions if deal is not reached
§ Arguments about strength and applicability of certain cases, statutes, or common business practice that supports your position.
§ Promises that will bind your client in return for concessions.
§ Recognition of other party’s views in order to establish a collaborative resolution process.
o Your goal is to get the other party to make an agreement on the terms as favorable as possible to your client.
§ Your goal is NOT to vent your client’s anger or frustration, or
§ To demonstrate your prowess in researching obscure legal issues, or
§ To demonstratively display your personality, or
§ Treat the negotiation as a monologue with your opponent as a passive audience member, but rather to
§ Create a dialogue intended to persuade the other side to reach a mutually acceptable agreement.
· Elements of a negotiation
o Interests bring negotiating parties together.
§ What motivates the parties.
o Rights and powers influence the result because without a resolution, the path to litigation will become more defined.
o Interests are needs, desires, and concerns.
§ Prompt resolution
§ Maximizing financial position
§ Maintaining relationships between parties
· Interests
o Interests in Transactional
at bargaining is always limited to the potential judgment entered by a court.
· Using the adversarial approach, most make the mistake of limiting their bargaining to strengths and weaknesses of legal claims and defenses.
· Or, trying to predict what jury will award.
o Problem Solving Approach
§ Focuses on the interests of the parties – is this method preferred? Yes.
§ Instead of focusing on distribution of limited resources, problem solving focuses on the integration of resources each side brings to the negotiation.
§ Instead of zero-sum, it is designed to be more win-win.
§ Use problem solving approach:
· Identify client’s problem
· Predict what will happen in the future
· Create and implement strategies to control what will happen in the future
§ Each side is assumed to bring something useful to the table that can benefit both sides.
· Your negotiation should integrate these interests in a settlement or coming to an agreement on a deal.
· E.g., joint venture – one party has money, other party has sweat equity. This negotiation is not zero sum – you are not trying to gain something at the expense of the other side.
· E.g., personal injury suit – one party seeks quick resolution and defendant wants to extend payments over period of time – neither is a right or power.
o Instead of focusing on the rights and powers of each a party, focus on their interests
o The discussion involves less about the facts of the case or the law and more on settlement and its terms.
§ Well-known book to this approach: Getting to Yes
· When negotiators bargain over positions, they end to lock themselves into those positions. The more you clarify your position and defends it against attack, the more committed you become to it. The more you try to convince the other side of the impossibility of changing our opening position, the more difficult it becomes to dos o. Your ego becomes identified with your position. You now have new interest in saving face – in reconciling future action with past positions – making it less and less likely that any agreement will wisely reconcile the parties’ original interests.
