Bottom Line Negotiating is not the answer to all negotiating impasses. However, it may prove exactly what is needed to get past certain negotiating barriers, or provide some recourse to the erstwhile negotiator when faced with an unrealistic litigation opponent. It’s not really gambling….
Litigators over- and under-think the humble mediation brief. They provide their diligent mediator with a lengthy summary judgment motion, exhibits included, slapping on a new caption page titled “Confidential Mediation Brief,” or they submit a three-page recitation of the most elemental facts. In either case, the attorneys end with a promise that they will negotiate in good faith despite how worthless and frivolous the opponent’s case happens to be. They vow either (a) to magnanimously waive costs in exchange for a dismissal, or (b) to accept full damages — but discount punitives — as the case may be. Gee, thanks. What we need is a Rethink.
Apple forms a dummy corporation, uses negotiators with fake names, engages in intentional deception, and possibly even lies, all to buy the iPad trademark for cheap. Is this cloak and dagger stuff just clever negotiating? Or are there limits to what even negotiating parties can do when trying to cut the best possible deal? For the negotiating geeks among us, we may find out if the Santa Clara Superior Court case of Proview Electronics Co. v. Apple makes its way to trial. (Click HERE for version published in Advocate magazine, August 2012)
Mediator selection used to be so easy. There were a couple of retired federal judges who were not quite all the way over the hill, and they had time on their schedule. Pick one, get told what to do, and maybe that was enough to get the case settled. But now? There’s a mediator standing on every corner with a “Hire Me” arrow spinning in his hands. They have all taken advanced mediation training from one of the hundreds of quality trainers out there. Some of them are even pretty good. So how do you choose? By hair color? Lack of hair? Height? Quality of mediation center snacks?
You have to love cutting-edge scientific research. First we learned that red wine was good for us (thank you scientists…or God…or both!). Then came the celebrated revelation that dark chocolate was actually a health food (and all this time I’ve been eating kale!). And now? It’s M&M’s. According to some very exciting new scientific studies (as interpreted by Your Author), M&M’s may make you a better negotiator, leading to more successful mediations. I’ll say it again for those of you who are hard of reading: M&M’S MAKE YOU A BETTER NEGOTIATOR.
You’ve just spent $3500 in legal fees preparing for an important mediation – getting the thing scheduled, gathering the critical evidence, undertaking a damages analysis, outlining a negotiation plan, preparing the killer mediation brief, and considering the dispute from every conceivable angle, including your adversary’s. On top of that, you’ve shelled out $2000 for your share of His Honor The Mediator’s reasonable fee, arranged your schedule to clear the day, and managed to get your client to take the day off work. You thought there was a good chance your case could settle, which was good because it is important to your client that it does. Everything appeared on track for a successful negotiating event. Except for one thing. Your mediator is blowing it.
Check out Mike’s Top 10 Settlement Tips here. Don’t go into your next mediation without them!
I walked into my last mediation blind. No briefs had been submitted, no pre-mediation conference calls, nothing. And so I had no forewarning on that early November morning as I offered Coffee and Tension-Easing Donuts to the disputing parties that I would soon come face-to-face with something I thought was purely mythical: A Mediator Ethical Dilemma.
What do the Orgasmatron, the Tingler, and a contaminated property have in common? Surprisingly, a very important lesson for California litigators and mediators. With a pair of opinions – regrettably unpublished – the First Appellate District recently helped delineate when term sheets signed at the end of a successful mediation will become binding settlement agreements – and when they will not.
Mediation may not be confidential enough as far as Girls Gone Wild founder and auteur Joseph Francis is concerned. As a result of rather unusual conduct at a “confidential” mediation session, the 34-year-old Francis found himself first in court, compelled to disclose mediation communications, and then behind bars, an unwilling guest of the Federal Bureau of Prisons.
Generally, we mediators like to consider mediation as a safe process, one where the parties can be candid with one another, where they can say what they think, where they can develop and explore options, where they can even apologize if necessary, all without fear that their statements will be used against them later in court. After all, if they know their statements might be admissible in court, who would say something like: “I’m sorry I took out your spleen rather than….
… The support for the defense motion included Los Angeles attorney Michael Young’s 2007 Alternatives article, “Mediation Gone Wild: How Three Minutes Put an ADR Party Behind Bars“…. Young wrote that Smoak’s moves intruded into the mediation process and hurt ADR. In his December opinion, Judge Smoak addresses and pointedly rejects Young’s contentions.
A federal judge has rejected a recusal motion from the maker of the Girls Gone Wild videos, who challenged the judge’s impartiality for first ordering mediation, and then sending the producer to jail for contempt based on his ADR conduct. That means the civil case against still incarcerated Joseph Francis will proceed. And, surprisingly, the case will go back to mediation.
This should come as no surprise to anyone who has heard the story. Joseph Francis, soft-porn king, and now accidental poster child for mediation confidentiality, has filed suit to undo a mediated settlement agreement that he claims was signed under duress. He has a good point, too. After all, he was thrown in jail in Florida for his mediation conduct, and— at least in his mind—could only get out if he agreed to sign a multimillion dollar settlement agreement to resolve a civil lawsuit. Jail can be a pretty good motivator in that sense.
LOS ANGELES – If you find yourself watching E!’s “True Hollywood Story” about “Girls Gone Wild” creator Joe Francis, look out for the talking head of mediator Michael D. Young. … [A] paper detailing how Francis went to prison for his conduct in a mediation, “Mediation Gone Wild: How Three Minutes Put an ADR Party Behind Bars,” arguably has brought Young his 15 minutes of fame, including the E! spot.
~ By Greg Katz; Daily Journal; August 29, 2008
RADIO INTERVIEW: Mediation Gone Wild audio interview
Doug Noll of World Talk Radio`s “Fix Your Conflicts” interviewed Mike regarding the Joseph Francis mediation jailing, employment and IP mediation, confidentiality, and more.
~ Television: E! True Hollywood Stories, Joe Francis
Mike Young was featured as the legal analyst in E! Television’s biography of Joe Francis.
PROFILE: A Win-Win Situation
Mike Young [USC Law Class of ‘85] always planned to dedicate some part of his career to teaching. His father was a faculty member at UCLA, and Young saw him as the epitome of a college professor.
~ By Lori Stuenkel,USC Law Magazine, Spring/Summer 2007
…Power is not something that intimidates Young. He has worked on complex multiparty disputes – for example, a dispute over a freeway overpass route that involved mayors, city supervisors, CalTrans and all of their attendant political interests and egos. He was able to find the underlying public interest they all shared and work from there….
~ By Anne Marie Ruff, Daily Journal Staff Writer; Nov. 18, 2005
The fact is, there are some types of complex cases that simply do not lend themselves to efficient resolution by trial, whether jury trial or bench trial. While our court system does provide a mechanism that will, one way or another, resolve a dispute, it is not the system of choice for all disputes. In light of the special complexities of an environmental dispute, and the unique needs of the disputants, we suggest a team mediation approach, which we describe below.
I wish I was clever enough to make this stuff up, but I’m not. Only reality can be this bizarre. A sexual harassment defendant settles the case for $1.3 million. Not satisfied with the usual “no admission of liability” clause found in most settlement agreements, Mr. Harasser insists on an adjudication of NON-liability as a condition to paying the $1.3 million.
Once again, the trial courts are trying to mess up mediation confidentiality by judicially creating (legislating?) exceptions to the confidentiality statutes. When faced with a public policy that competes with California’s strong public policy favoring mediation confidentiality, the trial courts too often seem to tip the balance the wrong way by inventing unwritten exceptions to the law. Luckily, in the recently-penned decision inWimsatt v. Superior Court (Kausch) (Cal. App. No. B196903), the appellate court fixed things up…although it was clearly not happy about it.
I negotiate for a living, as do many of you. And, as many of you have already figured out, while negotiation tactics will always be part of the process, the slime, rancor, bullying, threats and raised voices that characterize the worst in negotiations need never see the light of day. Like anything else in life worth doing, it all depends on how you play.