January 06, 2016

Five New Year’s (Dispute) Resolutions!


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. Appropriate client participation in a private session or a joint session will generate greater satisfaction for both you and your client.

2. Communicate effectively with your opposing counsel.
We underestimate the impact of effective communication in our relationships – especially with our opponents.  Based on my nearly two decades of mediation experience, we can reap rewards with clear communication and respectful dialogue  with opposing counsel.  Such lawyers operate from strength and integrity and their opposing counsel will often reciprocate with respect. This respect can be the glue that helps seal the deal.

3. Stay centered even when you’re facing adversity.
The study of neuroscience has shown that when we’re under stress, we often react in the classic fight or flight mode. But these reactions serve neither ourselves nor our clients.
Developing strategies to get back to center so we may respond effectively in the face of a stressful event is, in my opinion, the most important skill to ensure both optimal outcomes and general well-being.  These strategies can be small habits that resonate with you, such as taking a few slow deep breaths, pausing, taking a walk, meditating for a few minutes, listening to inspiring music, or confiding in a trusted friend to gain perspective.  

4. Make credible demands and offers.
Over the last two decades, I’ve seen trends where the defense counsel will make an extremely low initial offer or the plaintiff’s counsel will start with an extremely high demand in situations that don’t correspond to the realities of the actual case that’s being mediated. Neither tactic is effective. Remember that the person who is first to make a credible demand or a credible offer has control over the negotiation. Be that person.  

5. Prepare your mediation brief and settlement agreement in advance.
This may be mundane but it’s crucial:  don’t submit a brief the day before the mediation. You have no guarantee that your busy mediator will be able to read your good work.  And consider bringing a well-written draft settlement agreement to the mediation, so you can tweak it as the deal points are being negotiated.

You may remember the Facebook v. ConnectU case, where the Ninth Circuit ruled enforceable a short, handwritten agreement that the lawyers sketched out at the end of a long day of mediation.  The Winkelvoss twins contended that the agreement lacked material terms, and therefore, was unenforceable.  The Ninth Circuit disagreed.  Noting  that a half dozen lawyers attended the full day mediation on behalf of ConnectU and the Winkelvoss twins, the Ninth Circuit implied that these lawyers had both the time and expertise to draft a clear agreement at the mediation.  Take advantage of those long pauses in mediation to craft your settlement language.

Filed Under: Mediation, Negotiation

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