ADR Practice Tips and Insights For Lawyers and Clients

by Myer J. Sankary, Esq.

Of the thousands of legal disputes that are filed in court each year, a small percentage are actually resolved by trial! Indeed, with the growth of alternate dispute resolution over the past 20 years, almost all legal disputes are settled without trial. By now, almost all attorneys who represent clients in litigation matters, frequently participate in the “primary” (not “alternative”) system for dispute resolution — either mediation or arbitration. Today it is likely that most lawyers will spend substantially more time representing clients in mediation or arbitration than in trial. Yet lawyers devote more time learning litigation and trial techniques than learning how to represent their clients effectively in mediation and arbitration proceedings.

Stay Alert

Attorneys are often lulled into a sense of self-assurance by the relaxed atmosphere of the mediation proceedings and by the knowledge that mediation is non-binding. Most advocates feel assured that they know how to negotiate the best deal for their clients even though most have never read an article or book about the subject, nor have they taken a course on negotiation strategies. They prefer to rely on their instinct and intuition, or on whatever seemed to work in their last mediation. On occasion, they may pick up a new idea from the mediator or from other attorneys. But don’t be fooled. Have a plan, follow it, and stay alert to the dynamics of the mediation process.

Know When to Compete and When to Cooperate

The best negotiators understand the tension and timing of competition and cooperation in achieving deals that are satisfactory to the negotiating parties. Game Theory is fundamental to understanding negotiations. In their book “Coopetition,” (1996) Barry Nalebuff and Adam Brandenburger, from the Yale Management School and Harvard Business School, argue that every human interaction can be understood as a game in which there is both cooperation in creating value and competition to divide it up. Thus, combining these two aspects into one unified behavior, “coopetition,” expresses the strategy of effective negotiations. In his recent book on legal negotiations, Harvard professor Robert Mnookin argues that lawyers who make deals and resolve disputes are at the same time creating value and claiming value for their client. “Beyond Winning: Negotiating to Create Value in Deals and Disputes,” with Scott R. Peppet and Andrew Tulumello, (Harvard University Press, 2000). These experts suggest the best negotiator knows when to compete and when to cooperate.

Understand the Other Side

A key concept in strategic negotiations is to develop a plan that not only includes a thorough understanding of your side of the case, but also an understanding of the opponent’s case as well. Effective negotiators put themselves in the shoes of their opponents and try to evaluate the strengths and weaknesses of the case as viewed from the other side. When a negotiator understands his opponent’s perspective of the case, he is better able to anticipate what will be needed at the right moment to address and overcome the objections of his opponent.

Start at the Goal Line and Work Backwards

Effective negotiators have an opening, middle and end game strategy. They think through where they want to end up and work backward to develop tactical maneuvers that will lead them back to their goal. Legal negotiation is a dynamic process of human interactions at many levels, perceived and unperceived, played in the shadows of a range of possible judicial outcomes with each party gambling on the strength of their prediction. Define your goal – eg. the terms of an acceptable agreement, and work backward – then develop proposals and counterproposals that will lead to where you and your client want to end up.

Before and After the Mediation

Counsel should write out a plan of attack before the mediation. After the mediation, write a summary of what happened that explains why counsel believes the mediation was either successful or not. This will be an excellent way of tracking your experience and reviewing what worked and what didn’t.

Top Tips For Settlement Success

Here are some suggestions to remember in preparing a case for mediation:

• Prepare for mediation as if for trial. Be ready to negotiate with a full deck of cards. Know the case, both the facts and law, both supporting and negative elements. Analyze the probable value of the case compared to other similar cases decided in that venue.
• Know the negotiating style of the opposing attorney. Is it cooperative or competitive? Adversarial or collaborative? Ascertain the best way to communicate with the opponent to achieve the client’s objective. What style should counsel use in response to the opponent?
• Know the client and the client’s interests in the outcome. Prioritize money, benefits, recognition, apology, references, revenge, vendetta, principle, reduction of tension, aversion of loss and uncertainty, elimination of conflict, keeping business/family relationship. Know how motivated your client is to settle given all of these factors. Consider creative solutions and build options that will satisfy the client’s interest as well as the opponent’s interests. Advise the client regarding the mediation process and what counsel expects him or her to do. Many attorneys allow their clients to participate in a mediation without a clue about the process or the beneficial opportunities it provides.
• Consider how emotional factors affect each party’s judgment?
• Know oneself. Do counsel’s interests conflict with his client’s?
• Carefully weigh your opening demand or offer. What does it communicate to the other side? Will it reveal that counsel is experienced and reasonable and knows the proper value of similar cases or that counsel is a novice, unaware that an unsupported extreme demand will only offend the other side and end the negotiations?
• Bring a draft of a written settlement agreement on computer disk or e-mail to the mediator’s office.
• Know your BATNA (best alternative to a negotiated agreement) and WATNA (worse alternative to a negotiated agreement). Realistically weigh the alternatives of settlement versus litigation. Parties often reject offers out of hand without considering the high cost of pursuing litigation through trial or the risk tolerance of the client!
• Submit briefs that address the important issues, facts, legal disputes and practical matters pertinent to the mediation. Put enough forward to advocate the client’s position hold enough back to overcome opposing arguments. Lay out proof, reference supporting documentary evidence and deposition testimony. Brief significant legal issues relevant to the negotiations (for example, coverage issues with an insurance carrier). Exchange briefs where possible (confidential matters can be set forth in cover letters or supplemental briefs to the mediator).

Above all, spend some time reading about how to negotiate, and develop a style and method that suits your personality. Devote as much effort improving your negotiation skills as you do for trial and you should be handsomely rewarded!

Reading Materials:

Fisher, Roger and Ury, William, “Getting to Yes”

Cialdini, Robert, “Influence; Science and Practice.”

Voss, Chris, “Never Split the Difference”

Mnookin, Robert, “Beyond Winning”

Moore, Christopher “The Mediation Process”

Hammond, John, Keeney, Ralph, and Raiffa, Howard, “Smart Choices”