Did your last mediation go askew? Did you feel like you were on a TV game show? Today I’ll discuss common “game show traps” and what to do about them.
You and your client walked out on to the carpet to face the harsh glare of an unsympathetic panel of "experts." You presented your case and asked them for money. But you could barely get your story out. No one really cared. They didn't get it. They noted your passion, but were not that interested in your product. They nitpicked away at small details. Just before the end of the day, they gave you a take-it-or-leave-it offer which was going off the table in five minutes. You didn't really want to take it, but what could you do?
Most important, you have to know your BATNA--"Best Alternative to a Negotiated Agreement." Usually in our civil cases that means continuing with the litigation and heading further toward trial. You're not likely to go to trial; few cases do. But continuing on may move the needle closer to what you want. Never take an offer just because you're tired or worn down. You've worked too hard to get there. Think in advance where your strike zone could be. Always listen and be open to changing your mind. If you have really thought it out, you should have a pretty good idea of what you need.
Queen For A Day
I'm probably the only one who remembers this weeper. Three housewives told their tales of misery one by one. The judges listened and voted who was most miserable. No joke--it was for real and the stories were sad, sadder, saddest. The "winner" was crowned queen for a day, given a stole and a crown. She won a washing machine and a dryer. Credits rolled as everyone cried.
A great damage case will only take a plaintiff so far. You still need liability and insurance. Think of it like a slot machine where plaintiff needs three cherries to win. Plaintiffs can't mix and match their cases. The best damage case won't overcome no insurance. The best insurance coverage won't beat no liability.
Plaintiffs who try to oversell their damages are not likely to win the washing machine. It is one of the best defenses to let the plaintiff cry well beyond what the actual damages are. Maybe a plaintiff will fool a jury here and there but at mediation the defense won't buy it, and the case is not likely to settle.
Let's Make A Deal
Monty Hall offers you Door #1, Door #2 or Door #3. (As an aside, this has become one of the most discussed problems in logic--check it out on the Web.) You and your client agonize over which to pick. No matter what, you feel like the other door was better.
Preparing for the likely offers and demands is the best way to feel satisfied with your choice. Never leave a mediation feeling you could have done better. Of course you could.
Of course you could have done worse as well. The question is, did you realistically evaluate risk and make the best-informed decision you could have? If the answer is yes, the rest doesn't matter. Call the next case.
Your object is to get the other player to say the word you're thinking of. You cannot tell them the word. You can only say other words to get them to say the right word. The frustration is that you're giving them all the perfect clues but they just are not getting it.
Mediators see this frequently. A party feels that despite its best clues, the other side just isn't getting it. The best answer is a "break-in" as opposed to our usual break-outs. I discussed break-ins in two earlier columns and talked about how to do them and why. I have had very good luck doing them. Getting the sides together for short, controlled and focused meetings is the best way to let them communicate with each other. If you have a point or if you have a number you want to communicate, there is no reason you cannot simply say so. Just be careful because first, once you say it, it's out there; second, it may not get you closer to your settlement goal; and third, things change. You may change your mind. The case may change. Work with your mediator to figure out how to get to the point.
The Dating Game
You don't actually get to see the person you're playing with because you're separated by a partition. All you can do is sound as attractive as possible. You make clever comments which you hope will convince them to pick you.
Again, break-ins are great for solving this problem. It's difficult to play poker without seeing the other player's face and body language. Other than that, remember this isn't a one-night stand. You want a deal that will last forever and leave everyone reasonably satisfied. The true value of the case needs to be presented. Slights and digs and superficial points are not likely to get you there.
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Mediations can and should be fun. If you are prepared, if you have given some thought to where you are going, have analyzed the risk, thought about your alternatives, and communicated with your client to set expectations, relax and enjoy it. You will make a deal that day or you'll make a deal another day.
The most important thing to remember is that cases rarely settle at mediations because of something wonderful or horrible or unexpected that happens at the mediation. Cases settle at mediation because of what is done beforehand.
At mediation, you have complete control of your destiny. You're not biting your nails waiting for the jury's announcement. You pick when and how you want to mediate.
Vanna White isn't going to be there.
You're not spinning a wheel of fortune.
You set the stage. You bring the players. You make the decision.