Ask a mediator

Welcome to Mike Young’s Ask-A-Mediator!

Here is your chance to ask a mediator those pesky mediation questions that have been on your mind, be they about the itty bitty details of the mediation process, or 20,000 foot conceptual questions.

For instance, don’t you wonder what’s really going on in the other room?  Do mediators secretly pick who is “right” or “wrong,” and if so, does it affect their conduct?  And what’s the deal with mediation confidentiality, is it really that important? [More…]

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Current Conversations

WHAT’S WITH ALL THE BLAH BLAH IN THE FIRST 2/3 OF THE MEDIATION SESSION?

Hey Mike.  I don’t get it.  I go to mediation and we spend most of the day talking about the case, the law, the facts, you know, that stuff we went to law school to figure out.  And then all of a sudden it’s like a switch has been thrown and we ignore all of that and just start tossing numbers back and forth like a hot potato.  What gives?  Why don’t we skip all that gab fest at the beginning and just get down to it?

talking dog

— Impatient In Inland Empire– 

Dear Impatient.  First, if you are impatient in the Inland Empire, how do you get to downtown L.A. without blowing a fuse?  Helicopter?  That traffic’s a bitch.

But I suppose a traffic report is not what you were writing about.  For an impatient counsel, your question is pretty insightful.  Hopefully you’ll have the patience to make it to the end of this blog entry to find the answer.

Let’s Start At The Beginning — The Target

But first, let’s start at the beginning…with your client.  He hired you because he has a dispute with someone or something (although corporations are people too, or so I’ve heard….)  One way to resolve the dispute is to bring a lawsuit.

Lawsuits are perfectly good ways to resolve disputes because no one gets hurt … at least not physically.  The legal resolution process will be messy, it will be expensive, it will be time-consuming, it may even be embarrassing, and did I mention expensive?, but it will resolve this dispute … one of these years.  Justly (in the eyes of the winner) or unjustly (in the eyes of the loser), thanks to the mob wisdom of 6-12 strangers dragged in off the street (with a possible assist from a learned judge and possibly a bunch of learned justices), your client’s dispute will someday … mercifully … be over.  This legal dispute resolution process – this trial and possible appeal – is critically important to the mediation process and is the answer to your question.  This tortuous trip to trial becomes the target to beat at mediation.

(Hang in there, Mr. Impatient, I’m getting there!)

Beating The Target

In contrast to Mr. Toad’s Wild Trial Ride, mediation is like It’s A Small World, though without the saccharin music.  In mediation, the parties try to beat the trial path target by creating options they like better than trial.  Mediation is about understanding true needs, desires, interests, wishes, fears, and motivations.  It’s then about trying to invent settlement options that address those needs better than the alternative … which is generally continued litigation and trial.  If the parties can create a settlement option that they both like better than the target, then they can shake hands and call it a day … a good day.  That is our goal in mediation, to create a tomorrow that the parties like better than the trial path they are on today!

For the negotiation geeks among us, trial is generally your BATNA (Best Alternative To a Negotiated Agreement).  Every settlement option is compared to the alternative, which is the litigation process and trial, to determine if the settlement proposal is any good.

So What, Mike!

“SO WHAT” you ask?  “Why are you telling me this?”  I’ll tell you why, Mr. Impatient.  The problem is this:  the way you analyze the trial option, and the way your opposing party analyzes the trial option, is not the same.  In fact, it’s not even close.

Continue reading


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FLIP THE TABLES ON IMPASSE

Mike, here’s a question for you.  Sometimes in mediation we get pretty close, but we can’t cut a deal, primarily because the other side, unlike my side, is so stubborn and unreasonable.  Any suggestions for what we can do in this situation, besides giving up and heading to Vegas.

— Frustrated In Fullerton —

Dear FF.   What happens in Vegas … well, it could actually settle your next case.  Which is a bit of a disappointment for me since I don’t really like to gamble.  I work way too hard to just give my money away (hey, it’s really hard work walking back and forth between rooms, grabbing a piece of Judicate West pizza on the way, and maybe sneaking a peek at Sports Center on the lobby television).

The point is, there is a gambling technique that is seriously overlooked and undervalued when it comes to resolving your litigated cases.  I can understand the hesitation – it seems somehow unprincipled, and we like to settle our cases based on principle.  But seriously, while principles get us started, how many cases really get across the finish line without some good old fashioned unprincipled number bashing.

I’m not saying this technique works for every case. In fact, it won’t work for most disputes.  However, I’ll bet you that in the right circumstance, this technique will close the deal, leaving both parties with a settled case…and a good story to tell.

The Golden Judge

I’ll tell you what this trick is in a minute, I promise (no fair reading ahead), but here’s what inspired me to tell you about it: a pretty bad old (1955) science fiction short story called The Golden Judge by Nathaniel Gordon (sorry, Nathaniel, the idea was fun, but the story was just plain stupid).  In it, the protagonist used this dispute resolution process to solve the Israeli/Palestinian crisis, the dispute between Britain and Argentina over the Falkland Islands, Northern and Southern Ireland’s dispute over six counties, an island dispute between “Communist China” and “Formosa” (I told you it was an old story), and more.

I’ll admit right now, this gimmick (and I suppose it is a gimmick) is not actually that powerful of a peacemaking tool; however, as I said, in the right circumstance it just might be powerful enough to settle your case.

What circumstance?  I think a few things need to line up just right for this to work: (a) each side has to want a settlement; (b) there can’t be too much distance left between the parties’ settlement positions; (c) the reason this gap hasn’t been bridged is due more to stubbornness, or machismo, or “face,” than anything else (i.e., there’s no great principle or sense of justice causing the impasse); and (d) each party has a little sporting nature, or sense of adventure, or a gambler’s spirit.

I used this settlement technique once when I was a young attorney trying to settle an environmental dispute with a developer who discovered a century old tar pit under his soil, which for some reason he was not pleased with.  (Developers can be so touchy.)  We had negotiated a deal to within $5,000 when things stopped.  I was already under my authority, so I could have agreed on behalf of my client to pay the extra $5,000, but I wanted to save my client the money (and hence show off my awesome negotiating prowess), and besides he was a rich developer who knew the tar was there when he bought the place (it was known around town as “the Tar Pit” for cryin’ out loud!) and he didn’t need the money.  He refused to budge because he was a developer, a born gambler, and I was a young kid, and he’ll be damned if he’ll let some punky young lawyer get the best of him.

I met him in one of the small town’s only bars to hammer out the last term.  We could have split the difference easily enough, but where’s the fun in that.  Neither of us even considered it.  But we did manage to settle the case, and you can probably guess how.  Yes, alcohol was involved.

We flipped a coin.  A $5,000 flip.

Never mind who won, that’s totally beside the point.

The point is, sometimes, when the conditions are right – when the parties want a deal and the gap is relatively minor, when the parties enjoy a small gamble and can live with the loss, when the problem is more ego than principle – something as simple as a coin toss may allow the parties to put this one behind them.

I suppose it doesn’t have to be a coin flip.  The coin flip has the advantage of being quick and left up to chance, allowing the loser to say “hey, it wasn’t meant to be; but I’m a man [or woman] of my word, so I’m abiding by the flip.”  But I guess there’s no reason it has to be up to chance.  Why not a golf game, a tennis match, a poker game, $100 in chips at a casino and 6 hours to see who can make the most (or lose the least) money, or forget the casino, see who’s the best investor.  Or make a cause out of it – who can raise the most money for a charity over the next month?  Or, just thinking outside the box here, who can hire Judicate West the most times in the next 12 months?  Okay, let’s not go overboard.  You get the idea.

There are other ways to channel your client’s sense of adventure to bridge a negotiation gap, particularly when faced with an unrealistic opponent.  For one such option – and I’ve done it so I know it can work, though it involves more math – you can check out the article: Bottom Line Negotiating: How A Little Negotiating Wager Can Break That Settlement Impasse . . . Or Make You Money Trying

[And if you are curious about The Golden Judge, it’s in the public domain and can be found here for free.]

HAPPY MEDIATING!


Posted in Negotiation strategies and tactics | Leave a comment

INCREDIBLY INTERESTING ETHICS MCLE CREDIT

I know, I know, this sounds like the opening line of a hyperbolic spam email.

(Hey, wait a minute, that gives me a good idea.  Spam email, here I come.  Turn your spam filters off, will you please?)

But don’t let the title stop you from reading this…because it’s true: interesting ethics credit packaged in a streaming video presentation that critics say is “absolutely riveting.”*

*As critiqued by my mother.

West’s Legal Ed Center has recently included a video presentation of Yours Truly and Zach McGee discussing the fascinating (and this time I really do mean fascinating) negotiation ethics questions that arise when an internationally famous technology company allegedly uses “clever” negotiation tricks and tactics to hide its identity in order to purchase a now ubiquitous trademark for cheap.

Oh the heck with it, I’ll just say it.  As readers of this site will recall, Apple was accused of some pretty funky negotiating behavior in its effort to buy the iPad trademark from a Chinese company.  Find out what Apple is alleged to have done, why it got sued for it, and how Apple’s $55,000 purchase of the iPad trademark rights ended up costing the company $60 million!  And you can do this while learning about the ethics of attorney negotiations in California … and getting ethics CLE credit. I know, I know, it’s a deal that’s too good to be true.  And yet it is true.

Read the description of the video, entitled Negotiation Ethics for Lawyers: How Apple Really Acquired the iPad here.  You can screen the video through West’s Legal Ed Center if you have a subscription, or get a bunch of friends together, pop some popcorn, and pay a few bucks for the one-time watch.

Don’t say I never gave you anything….

And for those of you who would like to take your newly-acquired ethical negotiation skills out for a test drive, you can try your luck against my dog on the negotiation game on my website at www.MikeYoungMediation.com.

Or to try them out in real life, book a mediation with me by calling Cathy Bustamante or any of the wonderful Judicate West Case Managers at 213-223-1113.

Negotiate cleanly, my friends.

MIKE

(P.s., in case you missed it earlier, you can find a copy of the article on this subject here.)

 


Posted in Negotiation strategies and tactics, Ethics | Leave a comment

DECEPTION IS STILL KING — Apple, iPad, And The Still Murky World Of Negotiation Ethics

 

Hi Mike.  Did you read where Apple is being sued for fraud in a trademark case over the name “iPad”?  The plaintiff, a company called Proview, claims that Apple created a dummy British corporation, used a negotiator with a fake name, and lied about its intended use of the mark, in order to negotiate the purchase of the trademark “iPad” in various countries.  Is this unethical negotiating behavior?  Or is it fair to hide the identity of the real buyer so the seller doesn’t get too greedy once it finds out the buyer is a gigantic corporation?  What’s the scoop?

– Honest Negotiator –

 

Dear Honest!

I read that article in the L.A. Times and found it fascinating – at least from the Negotiation Geek Ethics point of view.  (You can find the article here (assuming the Times keeps its link alive.))

I see two ethical questions:  First, is there anything wrong with hiding the identity of the principal in a negotiation?  Can you go so far as to create dummy corporations, and use pseudonyms, to hide the true buyer’s (and the true negotiator’s) identities?  Or does this cloak and dagger stuff cross the line into “bad faith” negotiating – if there is such a thing.  Or worse, unethical or unlawful negotiating?

Second, even if you can use dummy companies and make up the names of the company’s key employees, do you cross the line when you lie about the purpose of your interest in the product being sold?

OK, this is all a little nebulous.  Let’s get a little background first.

Continue reading


Posted in Negotiation strategies and tactics, Ethics | 15 Comments

Do Mediators Ever Screw Up?

Thanks to Toronto History on Flickr

The Stalled Mediation

Mike, I know this never happens with you….  Nonetheless, do mediator’s ever have a bad day?  And if so, is there anything I, as an attorney for a party, can do to salvage things?  After all, we spend a lot of time, not to mention money, preparing for mediations.  I hate to see that all go to waste just because the mediator stayed up too late the night before.

— Hard Working Litigator —

—————————————————-

Dear Hard Worker:

That is a fantastic question.  To begin with, your premise is 100% accurate.  That never happens to me.  I get a good night’s sleep every night and come to my mediations with my “A” game every time…or a cup of coffee.

But in my old life as a litigator, I had experiences where I felt the mediator was just phoning it in.  In fact, in one case (and this is a true story, not that my other stories aren’t true…) the retired-judge mediator carried messages back and forth for a few hours, and then just when a little momentum was starting to develop, the mediator excused himself for a doctor’s appointment.  He returned three hours later, carried messages back and forth for another hour or two, and called an impasse.  He billed us for the entire day.

And no, I didn’t use him again.  But it did get me wondering whether there was something I, as a party’s representative, could have done to breathe some life back into the mediation process after it became clear that the mediator was not providing much of a value-add.

In the end, I concluded there was something I could have done! In fact, when the mediator is blowing it, I think it is the lawyer’s obligation to step up and do something to change the dynamics of the process and infuse the mediation with new energy, new thoughts, new momentum.

How?  It’s actually not that difficult.  It is also the subject of an article that was recently published in Alternatives, the publication of the International Institute For Conflict Prevention and Resolution (CPR).  Click here for all the thrilling details. You’ll be glad you did.

Thanks for asking “HWL”.

–MIKE–

 


Posted in Confidentiality, Negotiation strategies and tactics, Mediation | Leave a comment