"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.
Although opposing parties in litigation have competing perspectives, they have a shared interest in reaching settlement. For this reason, you may find yourself framing a case differently for mediation than than you would for trial. When strategizing your approach in mediation, it's important that you understand what your opponent's decision-makers need to encourage them to negotiate. Let's look at two categories of decision-makers:
As litigators, we’ve all fallen into the trap of believing our client’s perspective, only to learn later of conflicting evidence that erodes our client’s case. It may be that our client was experiencing selective perception – a dynamic in which individuals focus on a certain aspect of a situation while unconsciously ignoring other equally important aspects.
Before we assume our client was pulling the wool over our eyes, we shouldn’t rule out the possibility that he honestly believed his perspective was true. Social scientists have found that we often overestimate our ability to perceive and recall events. Here’s a link to a fun one-minute video that may surprise you.
One of the major hurdles in settling personal injury cases is getting both sides to agree on the Medicare lien language in the settlement agreement; indeed, resolving Medicare reimbursement issues is often a prerequisite to many personal injury settlements. But even when the parties seek to comply with the current reimbursement laws, they may find the process unwieldy, time-intensive and uncertain – in large part because of Medicare’s inability to provide both clear guidance and timely responses.
Environmental litigation is often so complex, and usually involves so many parties, that each environmental mediation requires a unique combination of approaches—far beyond the classic caucus-only mediations that are standard today. While some environmental cases can certainly be settled quickly in a caucus format, many others require significant joint sessions and real dialogue among the participants. As a mediator, my goal is to work with the parties to structure the very best mediation process, hand-tailored to achieve a sustainable resolution—be it a CERCLA cleanup case, a regulatory air matter or a CEQA dispute.
CERCLA Cleanup Matters
When mediating cleanup litigation matters, I find that much key information is developed during the mediation process itself—such as identifying the nature and scope of contamination and the proposed remedial action plan. The environmental consultants play a vital role in the mediation, and I will often set up a process that allows them to work together to discuss the scope of testing and the scope of cleanup. These joint sessions are indispensable to helping the parties reach agreement on these pivotal issues.
In my experience, managing the allocation discussion in a cleanup action is the true key to a successful settlement and is also often the biggest obstacle in cleanup matters. It's rare that the parties are willing to openly discuss their respective allocations together. In my mediations, I first work with the parties collectively to help them reach broad agreement on the most critical allocation factors. Next, I ask each party to use those factors as a guide in allocating 100 percent of liability to the other parties, excluding itself. I've found this informal voting process to be an invaluable tool in promoting settlement.
What lessons can we learn from the recent Ninth Circuit decision in Facebook v.ConnectU? In that case, the Winklevoss twins sought to invalidate the settlement agreement that put an end to the highly publicized dispute between Mark Zuckerberg and the Winklevoss brothers as depicted in the film, The Social Network.
Consider this scenario: Plaintiff makes an opening demand of $800,000, defendant counters at $20,000, and the negotiation stalls because each believes the other made an unreasonable opening offer.
The negotiation has barely begun, yet the parties are already at an impasse. This is a perfect time to use “bracketing,” a simple but powerful impasse-breaking technique, particularly when the parties are very far apart.
Bracketing, also called range negotiations, is a technique where parties make conditional offers, allowing the parties to explore other ranges without actually agreeing to them.
In the past, courts have been reluctant to create judicial exceptions to California’s mediation confidentiality statute. (See Evidence Code Section 1115 et seq.) However, the California Court of Appeal, Second District, recently created a judicial exception and this ruling marks a departure from nearly a decade of judicial restraint. Cassel v. Superior Court, 2009 WL 3766430 (Cal. App. 2 Dist. November 12, 2009).
A new study investigated the accuracy of predictions by attorneys whose cases were headed to trial and the results may surprise you. Nearly 500 U.S. attorneys were asked to describe a minimum level of success and to predict their chances of achieving that success. The study concluded that nearly half of the lawyers overestimated their chance of success.
Imagine this scenario: You have spent a full day representing a client in mediation, and after eight long hours, the parties have agreed to a settlement. In order to reap the beneﬁ ts of your hard work, you want to memorialize the settlement. But you are tired and want to end the day quickly. You decide to jot down the basic terms on a term sheet and include a provision that the parties will enter into a more-detailed contract later. The parties sign the term sheet at the mediation.