Environmental and toxic tort litigation matters are often complex and usually involve many parties; this is why mediating them requires a unique combination of approaches – far beyond the classic caucus-only mediations that are standard today. While some toxic tort and environmental cases can...
I recently heard a mediator say that he never conducts a joint session when mediating litigated cases. He didn’t say he rarely conducts joint sessions – he said never....
Have you ever had a recurring impasse in your professional or personal relationships? Take, for example, the opposing counsel who screams at you in the middle of a settlement conference. Or how about the colleague who gets under your skin until you just can’t take it anymore and snap at him? At times like these, we often lack the ability to move the conversation -- and therefore the negotiation -- in a more productive direction.
Our initial impulse is to dwell on how difficult the...
Many of us will be making resolutions in the New Year. Here are five New Year’s (Dispute) Resolutions to assist you in resolving your disputes.
1. Engage your client during the mediation process.
We lawyers have a tendency to want to control the mediation, but this often prevents meaningful participation of clients...
Nearly a decade ago, I heard Dennis Ross, the senior mediator appointed by President Clinton, speak at an Association of Business Trial Lawyers program where he reflected on his role as lead mediator of the Israeli and Palestinian dispute. Ambassador Ross shared his most significant learning opportunity from the process: He failed to ensure that the representatives from each side - especially Yasser Arafat - had, in fact, been communicating with and obtaining buy-in from his respective constituents. Ambassador Ross believed that this failure to communicate with constituents was the primary reason why the negotiations failed.
As seasoned negotiators, most of us know how to do the classic distributive bargaining to settle a lawsuit. We understand opening offers, brackets and midpoints. When our matters settle, we don’t think twice about the process because it worked. But what about when there is an impasse? That’s when things get interesting, and we need to dig a little deeper to solve the puzzle.
In litigated cases, clients deal with myriad uncertainties. How can we help them make informed decisions about whether to litigate or whether to settle?
We first need to understand our clients’ approach to decision-making. Are they methodical, such as an insurance adjuster who has evaluated a case according to a specific risk analysis protocol? Are they driven by emotions, such as a husband who sues for defamation solely to prove to his wife that he didn’t do the derogatory things the newspaper published? As a litigator and a mediator for the past 25 years, I’ve observed that clients often cling to a single way of thinking about their case. When their thinking gets stuck, it becomes difficult for them to evaluate their case from different perspectives.
"Never confuse your adversary with your enemy.”
Chinese General Sun Tzu
Negotiating multi-party matters requires preparation, patience and insight. Counsel for plaintiff and defendant need to balance their roles during the negotiation and exhibit just the right amount of advocacy and problem-solving skills.
If you seek to reach a negotiated settlement in a large multi-party case, remember this wisdom: never confuse your adversary with your enemy. During the multi-party mediation, unexpected alliances are often created – at least for the purpose of creating closure of the litigation.