Setting the Stage for Success at Mediation, Act 2: Preparing the Defence

Preparation, Preparation, Preparation…

As with all other aspects of litigation, preparation for mediation is the key to a successful result.  It starts as early as choosing the most opportune time for the mediation – when your client’s case will be at it optimum – and selecting the most appropriate mediator for the case.

Selection of the mediator is an oft overlooked potential advantage.  Rather than adhering to any name on a rote list of acceptable mediators, careful consideration of the specific mediator best suited to mediate the unique dispute is a worthwhile exercise.

Do you need a mediator with subject matter expertise-one who will be evaluative and express an opinion on a critical, central legal issue you believe to be favourable to your client?  Or would a facilitative or hybrid mediator (a cross between an evaluative and facilitative mediator), who is knowledgeable and experienced, but who has the personality capable of getting to the bottom of the real interests driving the parties, be better suited?  Would your client benefit from an empathetic mediator who can make a personal connection with your client or with the plaintiff?  Would the age or gender of the mediator make a difference?  These are but a few of the considerations that should factor into your selection of a mediator.

Also remember the importance of instilling in your client confidence in the mediator selected, as this can be invaluable in the course of the mediation when the mediator’s input, views or opinion are being weighed.  Time invested in enhancing the mediator’s authority with your client will pay off many times over when crunch time comes.

Once your mediation has been scheduled maintain open lines of communication with opposing counsel.  Often after a mediation has been scheduled, counsel don’t speak again until the day of mediation.  But thorough preparation entails knowing your opponent.  Stay in touch with counsel; talk about the file and the issues involved- it is to your advantage to understand how opposing counsel views the case and to discern the knowledge, experience and tactics of your opponent.   What better way to know your counterpart than by keeping the lines of communication open and by speaking regularly with them.  As defence counsel, you should ensure that between the time of scheduling the mediation and the actual day of the mediation, that you remain in the best position to settle your client’s case in the most advantageous fashion.

This includes ensuring that you obtain full production of all relevant documentation and information, both from opposing counsel and also from your own client and potential witnesses.  Make sure that you receive all opposing expert opinions in a timely fashion-such that you are in a position to report to your client and to retain a responding expert with sufficient time to author a report in advance of the mediation.

Timely disclosure can be achieved by entering into a timetable for delivery of materials with opposing counsel at the same time as the mediation is scheduled.   Counsel are far more likely to adhere to a schedule which they personally agree to, or to subsequently agree upon a timely cancellation and rescheduling in the event that there is an inability to meet the original timetable.

The next step in the process of preparing for a successful mediation is one of the most important, if not the most critical step-clearly and concisely conveying to your client a detailed analysis of the potential outcomes.

This analysis should include:

  • an assessment of the strengths and weaknesses of your case, both from a legal and evidential perspective;
  • the chances of success or, put another way, the risks associated with proceeding to a trial outcome;
  • the realistic potential range of damages that might be proven and/or awarded;
  • the costs associated with proceeding forward with the case in the absence of a negotiated resolution, including the potential costs payable to the other side if the case is lost as well as the potential recovery of costs if successful;
  • and finally, the range of settlement authority being requested in order to resolve the case.

A very careful analysis of these issues will allow the defence to appreciate the downside risks and to be in a position to mount the best available case, but at the same time, to have sufficient funds to reach a suitable compromise.

This analysis should be prepared and forwarded to your client well in advance of the mediation so that your client is able to obtain the requisite settlement authority.  This may be of particular importance where the client is an insurance professional who will require time to report up the chain of command and to obtain settlement authority.

Typically defence counsel and the client do not meet until the morning of the mediation to discuss the strategy to be employed at the mediation.  However, it is better to have that strategy discussion, at least by telephone, before arriving at the mediation.  The discussion should include:

  1. the approach that will be taken during the opening statements;
  2. whether the client will participate in the opening statements and if so, how best to optimize that participation;
  3. will an apology be effective, will it be made and if so, by whom;
  4. the planned negotiation strategy;
  5. how to best utilize the services of the mediator;
  6. what aspects of the case might be compromised; and
  7. ideally, where the client would like to end up.

Discussing your plan of attack in advance can result in a much more effective negotiation and ultimately a better result.

For the defence, perhaps even more than the plaintiff, engagement in a mediation represents a significant investment of time, funds and legal resources.  To make sure that investment brings the best returns all of the factors above should be developed as thoroughly as possible.  This maximizes your chance for achieving a resolution that satisfies your client.  And at the end of the day isn’t that really what it is all about?

Setting the Stage for Success at Mediation, Act 1: Preparing the Plaintiff

Preparing the Plaintiff
Improving the chances of success at a mediation requires special attention to a myriad of details beyond brief preparation and mediation advocacy. Mediation is the one place short of trial where the parties have a chance to be in the same room. It’s important to understand the ways a client can be best prepared for this opportunity.

Managing Plaintiffs’ Expectations
This process starts at the very beginning. What did you tell a client about the outcome of their matter at the time of the first retainer? If you told them that the case could be worth $X you can be sure that is what they will remember. Keeping a plaintiff regularly apprised of the evidentiary changes that impact value is the best way to ensure that they will not arrive at mediation with an unrealistic view of the claim. Doing this in writing acts as an aide memoire for yourself. Keep the client apprised of the weaknesses in their case in writing so they will not be surprised when the words come out of the defence counsel’s mouth in an opening. Explain the deductible and threshold regularly as well as the attendant risks of trial, especially the cost implications of offers and bad results. Educate a client on what their pre-accident clinical notes actually say and the impact on credibility.

Pre-Mediation Meeting

If you have been actively managing expectations with a plaintiff, you will not have to spend much time analyzing the strengths and weaknesses of the case, including threshold and deductible, prior to a mediation. Instead, you can concentrate on the expected range of results, emphasizing that it’s a range. Lawyers don’t have crystal balls, but experience and attention to reported cases guide counsel to a recommended range. Ultimately, the decision to accept a figure that is less than the low end of the range is the client’s prerogative, and they should be aware of this option. A lawyer can never guarantee any outcome at a trial.

Explain what the role of a mediator is to your clients. Mediators are not judges or decision makers, but they have considerable experience in the subject area and a client should listen carefully to the questions a mediator asks and the messages delivered in caucus.

Clients need to understand the physical setting of mediations. They should know that mediations begin in a face-to-face meeting with the other side, and that the opposing lawyer will have an insurance professional with them. The mediator will start with an opening directed largely at the plaintiff. The reason for this is that the plaintiff is likely the only person in the room who has never attended a mediation.

Following the mediator’s opening, plaintiff counsel will make an opening statement. Remind the plaintiff that they will likely agree with everything their own lawyer says but, if they hear something that they don’t agree with, they should wait until they are alone with counsel to discuss it. Following the plaintiff’s opening, the defence lawyer will then share an opening statement. It’s likely that a plaintiff will disagree with nearly everything the defence says, but it is nevertheless important to listen carefully to understand the opposition’s case. Interruptions are not permitted, as everyone must be heard.

After the openings, there is usually the chance for the plaintiff to say a few words, if this is of interest. Unlike discovery, there is no requirement that plaintiffs speak, but this is the only time in the process that they can speak directly to the decision maker on the other side. They should be told that if they want to respond directly to a comment from the other side that they should do so in a calm and sincere manner. Histrionics are rarely persuasive. If the plaintiff chooses to make an opening statement, it should be crafted ahead of time and reviewed with counsel beforehand.

Once the openings are finished, the parties will separate and head for their own rooms where the negotiating begins. At its essence, a lawsuit is a commodity to be sold by a plaintiff to a buyer, who is the insurer. A client needs to understand that the only compensation that the system has to offer is money, which is a poor substitute for health.

The opening figures should be reviewed with the plaintiff before the day of the mediation. A plaintiff must be told not to become attached to the numbers. As in any negotiation, the seller starts high and has nowhere to go but down. The buyer starts low and has nowhere to go but up. Do not let the defence’s opening low offer create undue pessimism. The only number to pay serious attention to is the final one.

A pre-mediation meeting is also an opportune time to remind a plaintiff of the retainer agreement’s terms. One way of doing this is to pick a number and go through the process of breaking down that number to what the client will get “in their pocket.” Go through the calculations with a principled offer that has a breakdown and an all-inclusive number. If you choose a low number to use as an example, then you are reinforcing expectation management. Indicate to the plaintiff that when numbers edge into a range that the client should consider, you will do that breakdown so that they know where they truly stand in terms of outcome after expenses and fees. Review disbursements so those figures are not a surprise when added into the mix.

Finally, it’s helpful to review the documents they will be required to sign if an agreement is reached. An instruction sheet which sets out the settlement figure and the net proceeds to the client should be reviewed. The net proceeds to client is the client’s guarantee. What they get “in their pocket” will never be less than what the instruction sheet says. They should also be reminded of any tax implications of the settlement. Minutes of settlement and/or a final release should be reviewed conceptually so that the client understands that the case is finished and neither side can re-open it.

Most cases are resolved in an alternative resolution setting with mediation acting as the cathartic substitute for the “day in court.” By managing client expectations, including the file value, the facts and issues in dispute, and what is to be expected on the day of the mediation, a plaintiff will be properly equipped to conclude their case.

Improving the chances of success at a mediation requires special attention to a myriad of details beyond brief preparation and mediation advocacy. Mediation is the one place short of trial where the parties have a chance to be in the same room. It’s important to understand the ways a client can be best prepared for this opportunity.

Managing Plaintiffs’ Expectations

This process starts at the very beginning. What did you tell a client about the outcome of their matter at the time of the first retainer? If you told them that the case could be worth $X you can be sure that is what they will remember. Keeping a plaintiff regularly apprised of the evidentiary changes that impact value is the best way to ensure that they will not arrive at mediation with an unrealistic view of the claim. Doing this in writing acts as an aide memoire for yourself. Keep the client apprised of the weaknesses in their case in writing so they will not be surprised when the words come out of the defence counsel’s mouth in an opening. Explain the deductible and threshold regularly as well as the attendant risks of trial, especially the cost implications of offers and bad results. Educate a client on what their pre-accident clinical notes actually say and the impact on credibility.

Pre-Mediation Meeting

If you have been actively managing expectations with a plaintiff, you will not have to spend much time analyzing the strengths and weaknesses of the case, including threshold and deductible, prior to a mediation. Instead, you can concentrate on the expected range of results, emphasizing that it’s a range. Lawyers don’t have crystal balls, but experience and attention to reported cases guide counsel to a recommended range. Ultimately, the decision to accept a figure that is less than the low end of the range is the client’s prerogative, and they should be aware of this option. A lawyer can never guarantee any outcome at a trial.

Explain what the role of a mediator is to your clients. Mediators are not judges or decision makers, but they have considerable experience in the subject area and a client should listen carefully to the questions a mediator asks and the messages delivered in caucus.

Clients need to understand the physical setting of mediations. They should know that mediations begin in a face-to-face meeting with the other side, and that the opposing lawyer will have an insurance professional with them. The mediator will start with an opening directed largely at the plaintiff. The reason for this is that the plaintiff is likely the only person in the room who has never attended a mediation.

Following the mediator’s opening, plaintiff counsel will make an opening statement. Remind the plaintiff that they will likely agree with everything their own lawyer says but, if they hear something that they don’t agree with, they should wait until they are alone with counsel to discuss it. Following the plaintiff’s opening, the defence lawyer will then share an opening statement. It’s likely that a plaintiff will disagree with nearly everything the defence says, but it is nevertheless important to listen carefully to understand the opposition’s case. Interruptions are not permitted, as everyone must be heard.

After the openings, there is usually the chance for the plaintiff to say a few words, if this is of interest. Unlike discovery, there is no requirement that plaintiffs speak, but this is the only time in the process that they can speak directly to the decision maker on the other side. They should be told that if they want to respond directly to a comment from the other side that they should do so in a calm and sincere manner. Histrionics are rarely persuasive. If the plaintiff chooses to make an opening statement, it should be crafted ahead of time and reviewed with counsel beforehand.

Once the openings are finished, the parties will separate and head for their own rooms where the negotiating begins. At its essence, a lawsuit is a commodity to be sold by a plaintiff to a buyer, who is the insurer. A client needs to understand that the only compensation that the system has to offer is money, which is a poor substitute for health.

The opening figures should be reviewed with the plaintiff before the day of the mediation. A plaintiff must be told not to become attached to the numbers. As in any negotiation, the seller starts high and has nowhere to go but down. The buyer starts low and has nowhere to go but up. Do not let the defence’s opening low offer create undue pessimism. The only number to pay serious attention to is the final one.

A pre-mediation meeting is also an opportune time to remind a plaintiff of the retainer agreement’s terms. One way of doing this is to pick a number and go through the process of breaking down that number to what the client will get “in their pocket.” Go through the calculations with a principled offer that has a breakdown and an all-inclusive number. If you choose a low number to use as an example, then you are reinforcing expectation management. Indicate to the plaintiff that when numbers edge into a range that the client should consider, you will do that breakdown so that they know where they truly stand in terms of outcome after expenses and fees. Review disbursements so those figures are not a surprise when added into the mix.

Finally, it’s helpful to review the documents they will be required to sign if an agreement is reached. An instruction sheet which sets out the settlement figure and the net proceeds to the client should be reviewed. The net proceeds to client is the client’s guarantee. What they get “in their pocket” will never be less than what the instruction sheet says. They should also be reminded of any tax implications of the settlement. Minutes of settlement and/or a final release should be reviewed conceptually so that the client understands that the case is finished and neither side can re-open it.

Most cases are resolved in an alternative resolution setting with mediation acting as the cathartic substitute for the “day in court.” By managing client expectations, including the file value, the facts and issues in dispute, and what is to be expected on the day of the mediation, a plaintiff will be properly equipped to conclude their case.

 

Representing Vulnerable Clients

 

Every client is unique, and every client’s case has its own particular features.  How you deal with that uniqueness can have a large impact when trying to resolve the case.

By and large, your clients will be adults who are competent and able to give you instructions when needed.  But what about the other segment of the client population, who might be called  “vulnerable” clients?  They come in many forms:  minors, the elderly, those with a physical, mental or intellectual disability, clients with cultural differences, or any combination of these features.  To advocate successfully for these people, it’s important to be mindful of their needs.

 

Clients with Diminished Capacity

Rule 3.2-9 of the Rules of Professional Conduct speaks to your obligations to a client whose ability to make decisions is “impaired because of minority, mental disability, or for some other reason” requiring you to “as far as reasonably possible, maintain a normal lawyer and client relationship” with that client.  Although this may not be possible with a very young child, or a profoundly mentally disabled client, this Rule requires that an effort be made to establish a functional, positive, lawyer/client relationship.

The commentary under the Rule acknowledges that factors such as age, intelligence, experience, and mental and physical health may affect a client’s ability to make decisions and that these factors may change from time to time.  Thus it is always important to have up to date information on your client’s status.

The Rules of Civil Procedure also offer guidance on how to deal with parties under disability. Rule 7 sets out the procedures to be followed, requiring the appointment of a litigation guardian to act on behalf of the person under disability, which includes minors and mentally incapable persons, and mandating court approval of any settlement of that person’s claim. That requirement means that, when mediating settlement of the claim of a party under disability, the need for court approval must be kept in mind. Although the courts usually are prepared to approve a settlement where the litigation guardian and the lawyer acting in the case submit affidavit material supporting the settlement terms, it is not a rubber-stamp exercise and the court will decline to approve the settlement if it feels it is not in the interests of the disabled party.

 

Minors

Note that Rule 7.08 (4) (c) carves out a special category for a minor who is over the age of sixteen years, requiring his or her consent to a proposed settlement.  This is in keeping with other legislation, which allows a sixteen-year-old to drive, give consent to heath care and live independently. You may be retained when the minor is younger, but if they turn sixteen before the mediation and the majority of your client contacts have been with the minor’s litigation guardian (typically, a parent), you risk not having the necessary relationship to get the minor client’s consent when needed.

The best way to avoid this is to include the young person in your discussions throughout the case and especially during a mediation. A teenage client may have their own views about what is important to them, which may not be communicated through the litigation guardian.  This may happen particularly in families where restrictive social norms may otherwise preclude the young person from being included in the decision-making process.  If you have established and maintained a lawyer/client relationship with the person under disability as well as the litigation guardian, you can satisfy the twin obligations of following the instructions of the litigation guardian while ensuring that the minor client’s interests are advanced.

How best to do that?  Establish a line of communication and a pattern of inclusion long before the mediation. Explain fully the obligation to look after the minor’s interests.  Keep your language straightforward and age-appropriate. Avoid legalese.  Encourage questions.  Ask what’s important to them; they may not have a specific view, or they may defer to the litigation guardian, but they’ll appreciate that you asked.

If needed, your mediator can be part of this process.  They will be a new face in the proceeding and may be used as a resource if there are any issues of concern that arise between the minor and the litigation guardian.  The minor might want a chance to make his needs known without expressing them through the litigation guardian.  A skilled mediator can help to ensure that any differences of opinion between the minor client and the litigation guardian are addressed before settlement is concluded.

If it appears that the litigation guardian is not acting in the best interests of the minor, you may need to adjourn the mediation to allow you to determine whether it is necessary to appoint a substitute litigation guardian.  If your mediator has spent some time with your clients, they may be able to give you some insight on the dynamics between the litigation guardian and the minor client, to help you make that decision.

 

Mentally Incapable Persons

With respect to mentally disabled clients, Rule 7 doesn’t contemplate the same involvement in court approval of the settlement, but in all other respects the basic procedure is the same. Outside of the requirements of the Rule, the same principles of client relations apply.  You’ll want to determine to what extent the individual is able to understand what is going on and how much that client’s involvement is appropriate.

Depending on the level of disability, you may still be able to involve the disabled person in the decision-making process. Speak to their level of ability.  Avoid complex explanations and legal jargon. Give them the time necessary to digest the information and make their wishes known. Even if the person isn’t capable of giving instructions, it is their interests you’re advancing and they must be acknowledged as much as possible. As with the minor client, be alert for any indications that the litigation guardian is not acting in the best interests of the disabled party.

Finally, keep in mind that a person’s disability may change over the course of the litigation, for better or for worse. The client’s state of mind at the outset of a case may be quite different by the time you are setting up the mediation.  Given the goal of resolving the case, it’s a good time to reassess whether the disabled client’s condition has changed to allow more or less involvement in the process.  Prepare your client accordingly. Let your mediator know in advance what your assessment is and the extent to which your mentally disabled client can participate.

 

The Elderly

The first question might be, “Who is considered to be elderly”?  At one time, sixty-five was considered an advanced age, but don’t tell a baby-boomer that today!

In this discussion, “the elderly” are those people who are competent, but vulnerable due to the cognitive and physical limitations that may be part of the aging process, social isolation due to physical or mental barriers, or dependency on caregivers for decision-making.  While people in this group may be perfectly capable of making their own decisions, they may be unaccustomed to doing it and intimidated by the litigation process.

In most cases, caregivers are well-meaning, but may intervene in any attempt to have a meaningful discussion with the elder.  In some cases, caregivers may have their own interests at heart, and may need to be sidelined from the decision-making process.  At mediation, the influence of either of these caregiver types may be diminished or removed by having the mediator reinforce the concept that only parties to the litigation are allowed to be privy to the confidential mediation process. Consideration should be given to allow access if the elder person genuinely wants the support of a non-party and your assessment is that it would be in the client’s best interests to do so.

As with other vulnerable clients, the solution is to work to establish a relationship with the elderly client to ensure that they understand the process, know what the possible outcomes might be, and participate in the final resolution of the case.  An elderly client may be more concerned about the passage of time in a case, and want an earlier resolution than family members might want.  Waiting for a trial may not be in their best interests. Scheduling an early mediation might best suit their needs.

Take into account the person’s physical and mental endurance.  A few shorter preparation sessions, perhaps at their residence, may suit them better than a long meeting just before the mediation.  If the client lives in a facility that has meeting rooms, they may be more comfortable if the mediation is held there.

Consider whether a half-day mediation is sufficient or, conversely, whether the client will need a full day to allow for extra time to receive information, digest it, discuss it with anyone attending as a support person, and give instructions. Take breaks when the client seems to be flagging.  Once again, use everyday language, explain the process, be supportive of their needs, and above all, listen to what they have to say.

Your mediator may be more age-adjacent to your client than you are, and your client may be relaxed by seeing some grey hair around the mediation table.  Take advantage of that to help set your client at ease in an unfamiliar setting.

 

Conclusion

Vulnerable clients are entitled to legal representation as much as any other person, but they have special needs. In cases of legal disability, legislation speaks directly to that standing.   All have the right to a lawyer/client relationship, but it is your training and experience that will determine what form that relationship takes. In most cases, the litigation guardian, family member or caregiver assisting the vulnerable person will work for their best interests, but in situations where they don’t, you may have the task of protecting the vulnerable client from those who should be protecting them.

The expression “Don’t judge a book by its cover” is particularly apt.  Each vulnerable person is an individual with unique needs.  Your job is to determine how best to advance that client’s case, taking into account those needs and determining how to make the legal system work best for them.

Mediator Ethics

Quality lawyers adhere to multiple layers of ethical and good conduct guidelines as part of their daily practice. Some in the legal field suggest mediators exist in the wild west, with no rules or boundaries governing their work. Nothing could be further from the truth. Mediators who are also lawyers are bound by the same ethical standards as their peers. Those who serve the legal community must conform to their own specific ethical norms to be effective, trusted, and meet regulatory requirements. A careful balancing of interests and adherence to ethical boundaries is mandatory. While there’s no over-arching regulatory body for mediators in Canada, there’s an abundance of guidance offered by the courts and governing professional bodies.

For example, the Ontario chapter of the Canadian Bar Association has produced a Model Code of Conduct based on the five critical pillars of ethical and fair mediation practice. For matters mediated under the Mandatory Mediation Program, this code is binding and failure to adhere to it could result in removal from the Roster. Even for mediators who don’t work in the roster environment, the code offers strong guidance, and mediators ignore it at their own peril.

The first pillar is the Principle of Self-Determination. This mandates that the process belongs to the parties and decisions leading to any possible resolution shall be voluntary and non-coerced. In this context, the parties must clearly understand the non-binding role of the mediator, and the mediator must avoid providing any appearance of legal advice to the parties. When necessary, mediators also have a duty to advise parties to consult other professionals to help them make informed choices.

The second pillar is Impartiality. Suffice it to say that neutrality can never be compromised during the process. Once this happens, mediators can no longer function properly. It’s critical for mediators to identify cases where they may lose impartiality so they can decline those assignments or withdraw from the retainer as early as possible to avoid any disruption or inconvenience for the parties. That said, mediators can form opinions on risks or merits and express these opinions at the correct time. But mediators must remain unbiased between the parties, their interests, and the settlement options everyone wishes to discuss and consider. For further discussion on this issue, read Neutrality of the Mediator, The Coin of the Realm article.

The third pillar is the disclosure of Conflict of Interest. In cases where mediators identify a conflict of interest or a potential conflict of interest, they have a duty to disclose the issue to all parties as soon as possible. After disclosure, the mediator should withdraw from the case unless a fully informed consent for the mediator to continue is obtained from all participating parties. Even then, withdrawal is usually the most prudent choice.

The fourth pillar is Confidentiality. Trust is the foundation for all effective mediations, and it cannot be maintained unless the parties understand their discussions will remain confidential. The mediator cannot share information or documents with anyone who is not part of the process. While there are certain limitations to this duty (consent, order of the court, potential threat to human life), the parties cannot effectively discuss their needs with the mediator if there is a risk that information may reach those outside of the process. Mediators also need to ensure the parties understand the parameters for any information sharing that is revealed in caucuses.

The fifth and final pillar is Quality of the Process. This element covers a number of areas linked to providing a fair and effective session. The mediator must ensure the parties can clearly understand the mediation process and also have a real opportunity to participate in it. This means that linguistic and other barriers to full and voluntary participation in the negotiations must be carefully analysed and overcome before the process goes ahead. In cases where a particular technical or legal background is needed to effectively mediate the matter, the mediator has a duty to ensure they can provide the requisite level of skill and knowledge that the matter deserves.

While there are many other professional guidelines mediators can adopt to enhance the quality of their practice, the CBAO Model Code provides an excellent structure to understand the ethical restrictions that protect the parties from being subjected to an unfair process. Parties who entrust mediators with dispute resolution have a right to expect a serious, disciplined process and they deserve a chance to be fully heard. The CBAO guidelines help ensure those expectations can be met and exceeded. While a just resolution is the goal of any mediation, keeping the process itself firmly within ethical guidelines is equally important.

Storytelling for Advocates

Storytelling

Ambitious advocates use every means possible to persuade others to their position.  And while the legal merits of law, logic, and economic advantage never lose their value, one of the most influential tools available remains the ancient art of storytelling.

Storytelling breaks through all barriers, cultures, and languages, offering the most powerful format for delivering messages that will resonate with different audiences.  People use allegories to communicate, learn, and connect with others. Storytelling allows individuals to share knowledge and emotions, identify truths, find themselves and their place in communities, and make sense of the world they live in.  People are virtually programmed to discover stories, patterns or morals— and this process helps them make decisions.

But you can’t become a talented storyteller by accident.  These skills are honed via techniques that have been utilized over centuries.  In this issue of Negotiator’s Edge, we’ll share a few lessons learned from master storytellers that will take your written and oral advocacy to the next level.

 

Theme

Theme is the central idea or message you want to convey to your audience.  It serves as your organizing principle, and your narrative and inspiration must flow into this process.  Having a clear vision of your theme before you craft your argument is paramount, so you can reinforce your theme as you finalize your memos or submissions.  Your theme becomes the touchstone for all of the content in your argument.  If your prose does not support, enhance or amplify your theme, it has no place in your materials or submissions.

Themes must emotionally resonate with your audience’s worldview on several levels.  And keep it simple. If you include more than one or two themes in your submissions, you risk watering down their resonance or, even worse, confusing your audience.  Restrict yourself to one, or at most two themes, and only if they work in harmony.

Many people find it difficult to distill the theme of their argument or story while drafting their submissions.  The simplest way to discover the theme that resonates is to decide what emotion you want to illicit with your prose.  This question should immediately identify a number of themes you can use.

Lawyers are trained in a tradition of stoicism, logic, argument and reasoning—and they may have trepidation about using emotion in their advocacy.  But every human decision is influenced by emotion, often at key moments.  If you don’t embrace sentiment as an advocacy tool, you’re weakening your position.  Advocates need to tastefully embrace emotion to maximize their persuasive power.

 

Examples of effective themes might include:

  1. Mary had overcome her previous alcoholism to become a good mother before this car crash.
  2. The plaintiff has a long history of avoiding workplace responsibility.
  3. The actions of ABC company violated long respected community standards.

 

Powerful Verbs

Verbs are the engines that drive advocacy.  They’re the most important word choices you’ll make when planning arguments.  The correct verb choice can transform a dull opening into a powerful and persuasive rhetoric.  Conversely, the wrong verb choice can sabotage your efforts.

Always include a “verb edit” in written advocacy.  This includes reviewing every verb used in the draft to decide if it’s the best choice.   Avoid common and overused verbs in favour of evocative verbs that paint a clear picture and leave a lasting impression.  Don’t have someone walking or running. Instead, describe how they sprinted, bolted, sauntered, swaggered, staggered or limped.   With an online thesaurus, a focused verb edit doesn’t take much time, but it does pay significant dividends.

After you select the most influential verb, make sure the verb tense is applicable.  Using the wrong tense can leech energy and dynamism, leaving your prose as taut as overcooked spaghetti.  You don’t have to become a grammar maven to avoid this problem, just follow a few simple rules to stay out of trouble.

Avoid the “ing” form of words.  Using them forces you to include supportive verbs, like “was advocating,” and forms of the verb “to be” are passive and lifeless.  Consider the following examples:

 

She is running daily now.
She runs daily now.

 

She was running every morning.
She ran every morning.

 

She will be running tomorrow.
She will run tomorrow.
She runs tomorrow.

 

Similarly, avoid the passive voice, which causes similar problems.  In passive voice, the subject of the sentence is acted upon, while in active voice the subject of the sentence performs the action.

 

For example:

Passive:  The man was bitten by the dog.

Active: The dog bit the man.

 

The most powerful sentences are short, active, and simple.  Strong subject, powerful verb, specific object.  That’s the complete formula for compelling sentences that’ll have the most impact on your audience.

 

Whiplash Pacing

Readers enjoy material that moves quickly and doesn’t get bogged down in flowery language or legalese.  Traditional legal writing is often too dense and technical, losing its persuasive value.  Powerful written advocacy builds momentum as the work progresses, transporting the audience to the desired conclusion.  Whiplash pacing is a skill you should develop.

Try using shorter sentences, as longer sentences can be confusing and slow your pacing.  A good sentence only needs a strong subject, a sizzling verb, and an interesting object.  Clauses and qualifiers drain the energy from your prose and often force the audience to review the sentence more than once.  Not good.  Instead, make your point and move along to the next topic.

Paragraphs should be short.  Readers will be deterred by long unbroken blocks of text.  Their eyes automatically skip through lengthy paragraphs, often missing an important point, bored before they begin.  A page makes a visual impression, and that impression is more inviting when it offers significant amounts of white space.

Even if your material is dense or complex by nature, it’ll be easier for the reader to consume in bite-sized pieces rather than in big chunks.  Paragraph breaks also give readers time to rest before digesting your next point.

Remove material that’s repetitive or states the obvious.  Long diatribes about legal basics or undisputed facts or implications of a fact aren’t helpful.  Readers want to reach their own conclusions rather than be force-fed, and can feel insulted if you include basic material that speaks down to them.

You can’t go wrong with the legendary Elmore Leonard’s writing advice: “Try to leave out the parts that readers tend to skip.”  This means you should read your draft again from the point of view of opposing counsel and remove any material they would skip over.  There’s a reason that the phrase “kill your darlings” is often used by top writers and editors.

 

Characterization

Every good story needs a hero to cheer for or a villain to root against, and it’s your writing that will make the audience experience those emotions.  If you can entice the reader to invest in a certain outcome for your client, you can control their emotions and bias them to act in your favour.

One of the most powerful techniques for creating affinity towards a person or distance someone from an individual is called “psychic distance.”   This term involves the use of names or pronouns for a person, and it can make you feel closer to them—or unconnected to them—on a subconscious level.  The correct use of psychic distance has been proven to produce significant emotional changes in your audience.  Certain names and pronouns impact how readers feel about the subject.  The closest and most intimate of those is simply “he” or “she.” Stay close and use this point of view so that readers connect to the characters in your briefs. After he or she, the next best choice is a nickname, followed by a first name, a last name, a full name, and later—ranks and group associations ranging from the smallest to the largest.

Take thriller author Steve Berry’s character Cotton Malone. His love interest calls Cotton “Pappy”.  In this case, the spectrum would be from closest to most distant: he, Pappy, Cotton, Malone, Cotton Malone, Special Agent, FBI Agent, American.  If you would like the reader to invest in this character, refer to him as he, Cotton, or Pappy as often as possible.  If you want the reader to feel distant or hostile towards him, choose Special Agent or the American.

The same principle should be used for the parties to an action.  If you are trying to build sympathy for an injured person, calling her “the plaintiff” instead of “Lizzie” is undermining your effort.  To really amp up the connections, refer to the person as “he” or “she,” as often as you can, only resorting to their nickname or first name where clarity demands it.

 

Specific Over General

To capture the attention of your audience and sway their emotions, paint an evocative picture with your prose.  While lawyers are trained logically and analytically, the latest studies share that emotion plays a role in almost every decision we make.  Persuasive logic is a dynamic tool, but remains incomplete until it’s combined with an emotional prompt.  This can be achieved by using powerful imagery.  The clearer the image in a reader’s mind, the more impact it’ll have.

Always choose the specific over general when writing.  The term “motor vehicle” is particularly diffuse and powerless.  The “truck” is better.  The “cherry red 1994 Ford F-150 pickup” is even stronger.  Strive to be as specific as possible in your writing.  Even if certain details are not relevant, the impact on readers will serve you well.

 

Conclusion

With fewer cases going to trial and judges becoming busier, strong written advocacy is critical.  In the mediation context, all key parties will be exposed to written advocacy on both sides.  The mediator, your client, opposing counsel, and the opposing party all need to be persuaded by your prose or writing style.  In addition, other interested parties who don’t attend the mediation will be impacted by your memo.  Using these influential storytelling techniques will help make your written materials shine. Advocate using your most persuasive prose and secure your clients the best results.

The Benefits of a “Failed” Mediation

Mediations can be frustrating. And frustration is a growing concern in our current circumstances with instant gratification and a partisan divide shadowing our days. Still, we need to remind ourselves that all parties share a goal for resolution—even if they arrive with diametrically opposed ideas as to the respective merits of their cases. If progress towards resolution is slow (or non-existent), the level of frustration can blossom further. Mediators may find themselves in challenging scenarios early in a mediation, trying to persuade parties to continue the process rather than having them storm out.

A wise counsel once posited that a lawsuit was a mere commodity, which could be bought or sold like any other commodity—a powerful concept that’s still valid today. While the sale price of the lawsuit may evolve with the strengths or weaknesses of the case, the parties define the value of the lawsuit. Although a mediator can offer views on the various merits, the parties are the ones who determine if the “sale” price is acceptable to the prospective purchaser.

Before packing your bags, feeling the mediation has been futile, it’s worth considering the following:

 

  1. Is there really no chance of settlement?

Offers made by the parties are often separated by hundreds of thousands of dollars, and the gap narrows at a glacial pace. While the tenor of negotiations suggests that settlement won’t occur, strange things happen in the midnight hour of mediations. Surprisingly large movements often occur in the final round of offers, or just before the “closing bell.”  If parties grow frustrated and leave early, an opportunity for a satisfactory resolution can be missed.  Instead, why not dig in your heels and push through the point of frustration, working hard to discover whether a settlement is possible that day.

 

  1. Can you make progress on some issues?

Usually, a number of issues impede settlement in a case. You may want to ask yourself if the major concern is liability or multiple damages. Perhaps it’s possible to agree that liability should be admitted, or that liability should be divided between the parties on a fixed basis. For example, can an agreement be reached on general damages and past loss of income, leaving only future loss of income as the main area of dispute? A thorough airing of all issues will help clarify the impediments to settlement.

 

  1. Is this an appropriate case for bifurcation of the trial?

If the defendant has a strong position on liability, and damages are not really in dispute, consider setting aside the liability issue and just negotiating the damages. If the damages can be agreed upon, it may be far more efficient to simply go to trial on the liability issue.

 

  1. Can you narrow the gap?

If the initial offer from the Plaintiff is $1,000,000.00 and the initial offer from the defendant is $50,000.00, the gap may be too pronounced for settlement that day. But don’t end the mediation precipitously. It’s wiser to keep negotiating so the anchor positions have the Plaintiff at $500,000.00 and the Defendant at $300,000.00. Even if an agreement can’t be reached, you have made significant progress, which enhances the chances of settlement down the road.

 

  1. Is there a problem with authority?

Sometimes the parties are on the cusp of settling when defendants hit a wall because they don’t have sufficient authority and they need to contact a superior who is not readily available. Similarly, a Plaintiff may need to consult with an absent party before making a final decision. Consider whether the final offer can be left open for acceptance for a few days or it there are other alternatives.”

 

  1. Can a mediator’s proposal help?

If the parties have reached their “final” positions and a gap remains, it may be appropriate to ask the mediator for a suggested settlement figure. This proposal can be left open for a short period of time, with each party left to contact the mediator privately with a yes or no answer. If both parties respond positively, then the mediator can advise everyone a settlement has been reached, but if one (or both) parties say no, the mediator can simply advise both parties that there is no settlement. In a scenario where one party agrees but the other refuses, the refusing party will never learn that the other side was agreeable to settling—a practice that protects the negotiating position of both parties.

 

Conclusion

While the ultimate goal of mediation is settlement, real value can be delivered even when the mediation results in no settlement.  Mediations should never be considered failures unless one or both parties have refused to engage in the process in good faith.  Instead, “failed” mediations are most commonly a powerful catalyst towards eventual success.

The Power of Loss Aversion

Want to become a more effective negotiator?  One of the most powerful drivers of the decision-making process is loss aversion.   Understanding the psychology of this concept and how it impacts risk management can give you a decided edge during mediations.  The concept is so fundamental that it is a key underpinning of behavioural economics.

Tversky and Kahneman carried out ground-breaking research that resulted in Kahneman winning the Nobel Prize in Economics in 2002 (sadly, Tversky had passed and the Nobel is not awarded posthumously).  Three critical conclusions from their work impacted what we thought we knew about behavioural economics.

  1. Despite classical theory, humans as individuals and in groups often make irrational economic choices.
  2. There are consistent patterns and causes among these irrational actions that allow us to understand and influence decision making.
  3. One of the strongest explanations for irrational decisions is loss aversion.

 

Loss aversion simply means that people are more afraid of losing something than they are attracted to gaining it.  The literature demonstrates that people are approximately twice as averse to a loss as they are keen for a gain.

Imagine the following scenario:  A friend offers to flip a coin and give you twenty dollars if it lands on heads.  If it lands on tails, you give her twenty dollars.  Would you take that gamble?  For most of us, the amount we could possibly win would need to be at least twice as large—forty dollars—as the amount we could lose—twenty dollars—before we would accept the risk.  Once this concept is understood, an advocate can use the principle to guide the framing, structure, and timing of offers to enhance the likelihood of acceptance while avoiding any real sacrifice.

 

Framing:

Before we delve into the precise process, it’s important to analyze the study that set these parameters.  Tversky and Kahneman presented the following parable to a host of physicians, specifically targeted because of their training to use evidence and reason to find solutions.

 

The community is preparing for an outbreak that is expected to kill 600 people.  Two alternate programs to combat the disease have been proposed.  Which program do you prefer?

 

Program A:  If Program A is adopted, 200 people will be saved.

Program B:  If Program B is adopted, there is a 33.3% probability that 600 people will be saved and a 66.6% probability that no one will be saved.

 

For the same scenario the physicians were then asked to choose between the following two programs:

 

Program C:  If program C is adopted, 400 people will die.

Program D:  If program D is adopted, there is a 33.3% probability that no one will die, and a 66.6% probability that 600 people will die.

 

A careful read will demonstrate programs A and C are identical, as are programs B and D.   Logically, if a doctor chose A in round one, they should choose C in round two, and the same with B and D.  However, the physicians delivered almost reverse results with 72% choosing A in round one, but 78% choosing D in round two.  Why the reversal?  Framing.

In the first round, the outcomes are framed as “lives saved,” while in the second round, the propositions are framed as “lives lost.”  Our emotional mind weighs the value of losses and gains in very different ways.   We’re hardwired to avoid losses, even in ways that aren’t rational.

The moral of the story:  Offers should be framed as the avoidance of a loss, rather than as the opportunity for a gain.  In one large study involving insulation sales, homeowners who were told that failing to install insulation would mean losing X cents per day were much more likely to purchase the insulation than those who were told that it would save them X cents per day.

 

Framing an offer as a way of avoiding a loss is much more effective than framing it as an opportunity to gain or save.

 

Structure:

Our cognitive biases don’t just influence weighing loss and gain, they cause us to feel differently about the way we experience that loss or gain.

 

In a research study, subjects were asked which of the following scenarios would make them happier?

 

Scenario 1:  You’re walking down the street and find a $20 bill.

Scenario 2:  You’re walking down the street and find a $10 bill.   The next day you are walking down a different street and find another $10 bill.

 

Despite the fact that the outcomes are the same, the majority of people felt they would be happier in Scenario 2.

 

Taking the reverse approach, subjects were asked which of the following scenarios would make them unhappier?

 

Scenario 1:  You open your wallet and discover you have lost a $20 bill.

Scenario 2:  You open your wallet and discover you have lost a $10 bill.   The next day you open your wallet again and discover you have lost another $10 bill.

 

Once again, despite the equivalent financial outcomes of these scenarios, the majority of respondents indicated that Scenario 2 would cause them greater unhappiness.  What is the conclusion from the research?

 

People prefer to gain money in installments, and people prefer to lose money all in one lump sum.

 

These findings offer clear negotiation applications.   It is beneficial to structure offers to categorize gains—and spread them out over time—while one should lump together any losses in an offer and deliver all the bad news in one message.

 

Application:

In a typical motor vehicle litigation case, when four or five heads of damages are in play, how should each side structure their offers to have the best behavioural effect on the other party?

Plaintiffs are effectively asking their counterpart to give up something they have, or suffer a loss, so they benefit by moving to lump sum offers at an earlier stage in the process, putting the cards they are willing to show on the table early.  This approach also has tactical advantages beyond the cognitive impulse that will be discussed in later issues of Negotiator’s Edge.

Defendants effectively offer a gain to their counterpart, so they are better off keeping their offers segregated by heads of damages and increasing their offers (the good news) slowly and incrementally across a number of rounds.  This method appeals to our cognitive preference for gains over time.  Your counterpart will evaluate the string of concessions more positively than one lump sum concession.

 

Timing:

People can become attached to objects or gains, even before accepting any offers.  Once that attachment forms, then the loss aversion behaviour pattern starts to have an impact, even though no true loss can occur because the gain has not yet been realized.  This phenomenon is called Expectation Loss Aversion or Expected Loss Aversion.   This behavioural pattern needs to be carefully managed to avoid problems in achieving settlement, but it can also be leveraged to finalize resolutions.

We must be cognizant that a party can form an attachment to an outcome long before that outcome has come to pass.  Counsel needs to advise their clients that best-case scenarios or aggressive opening positions are not realistic or expected outcomes, but merely a negotiating tactic or tool.  A client developing Expectation Loss Aversion to an unrealistic position can be an obstacle for settlement.

To enhance the chances of settlement, a party may consider an offer as their asset and become attached to it, even before it has been accepted.  This allows the power of loss aversion to propel the negotiation forward.  For example, if an individual is offered $100 and has time to form an attachment to it, they may then approach the next round being protective of the $100 they now believe is in their pocket, rather than aggressively pursuing a larger figure.  This makes the original party more amenable to compromise.  However, people need time to form that attachment.  Both counsel should carefully balance the timing and pace of offers, considering both the time needed to form an attachment and the power of urgency in moving parties towards or away from any particular outcome.

 

A counsel who hopes the opposition will become attached to their last offer should slow the proceedings down, while counsel seeking to avoid that connection should keep the offers moving quickly.

 

Possessive language can harness the power of Expectation Loss Aversion while guiding a party towards settlement.  Stressing to a party that the offer in hand is effectively an asset to be protected and moving forward creates a risk of loss of that asset harnesses the cognitive impulse to resolve the case and avoid the potential loss.  This approach finds its clearest expression in the well-worn but effective “Going to Vegas” analogy where the current offer is referred to as “coin in hand” and proceeding is analogized to putting that coin into a slot machine and taking one’s chances.

 

Take-Aways:

  1. In the human mind, loss looms twice as large as gains.
  2. Gains in offers should be categorized and spread out over time.
  3. Losses or concessions in offers should be lumped together.
  4. Parties need time to form emotional attachments to an offer.
  5. The language of ownership can help parties become invested in offers.

The “F” Word

Nothing halts a productive mediation more than one of the parties launching the “F-bomb.” Salty language can be used during negotiations from time to time, but in this case we are discussing the use of the word “final.” Mediators cringe when either party asks them to deliver their “final offer.” Without corrective effort, this phrase can become the death knell of the positive negotiations.

There are several reasons why this term should be avoided during positional negotiating:

There can be a significant emotional impact on the party using the term and on the opposing party. One party has now issued an ultimatum—my way or the highway—and have locked themselves into an inflexible position. The opposing party has been rejected and informed that that nothing less than full surrender will resolve the case. The process has been turned into more of a game of chicken than a negotiation. One side is invested in a static position, while their counterpart cannot approach that position without looking like they are conceding. The emotional momentum has swung away from resolving the case.

Tactically, it’s often a mistake for the party issuing the ultimatum. They have lost all ability to maneuver, leaving themselves no flexibility to bring the dispute to an end using either creativity or even a nominal concession without looking like their announcement of a “final” position was a bluff. In a case of any size, it’s unwise to move forward with expensive litigation over what might be a very small gap that can no longer be bridged because of one party’s use of the “F-word.”

Also, it can create reputational risks and consequences for the party who uses the term and then moves off that position (often wisely) to resolve the matter. The party who makes the “final offer” has demonstrated their line in the sand can be crossed, and it can hurt their credibility on an ongoing basis. This can be particularly problematic for advocates who take this position based on instructions from their party who shares that this is the final offer, and later finds out, much to their chagrin, that they can go further to resolve the case. We suggest a healthy discussion between lawyer and client before the mediation takes place that includes the client being forthright about their realistic goals and working parameters.

This does not mean that one should keep negotiating until a deal is made, eschewing hard boundaries. Every party has the right to determine what lines they will and will not cross to bring an end to a dispute. But it’s critical to consider precisely how to signal that one is close to those boundaries. That should be done without dropping the “F-bomb.” It can be done with utter seriousness, or with humour, in ways that leave the door open to allow a good mediator to keep working to find a resolution.

Even “this is the last formal offer I’m willing to make today” leaves the door open for the mediator to tailor a package that will meet your needs and settle the case with only the smallest of further concessions. The savings and other advantages that come from closing a file justify making every effort to resolve a case, and throwing the “F word” into the mix can sabotage that end. Instead, counsel and parties can develop a more nuanced lexicon to signal they are almost out of room so they can close more of those challenging files.

Perhaps instead of the “F word” you can consider using the “A word” as in “This is almost my final offer.”

What can Negotiation Science do for me?

Perhaps it’s helpful to start with what negotiation science can’t do for you. Negotiation science can’t mesmerise, trick or fool your counterpart into accepting an offer that doesn’t satisfy their needs. It can’t make a strong case weak, or a weak case strong. And it will never take the place of properly building your case through the careful investment of time and resources. Negotiation science also won’t allow you to read your counterpart’s mind or predict their moves with precision.

Negotiation science can do two things for you. It can enhance the likelihood that any particular proposal will be accepted or at least received in a positive fashion, and it can help you identify the real needs of your counterpart, so you can satisfy their needs in a way that makes sense for both sides of the table. No doubt about it—consistent use of negotiation science will produce better results.

Negotiation science is not a game changer in the same way as an independent witness who supports your client’s version of events; rather than being a building block, it’s an enhancer. That’s why we call our newsletter the Negotiator’s Edge. Will these techniques consistently enhance the chance of any particular proposal being accepted by ten percent? Probably not. But it might just enhance it by two or three percent, and that’s the edge you want. Because case after case, year after year, that edge can make all the difference.

Let’s explore two powerful ways you can enhance your offers.

 

Be Justified

The likelihood of a request being accepted is greatly enhanced when a justification is offered for that request. This can be referred to as the “because factor”. The power of the “because factor” is based on two scientific realities. We’re all literally hardwired to work together and co-operate (although sometimes it may not seem like it) and our evolutionary success is based on the power of the rational mind, which seeks out reasons to co-operate. When an offer is accompanied by a justification or a “because,” it has a significantly greater chance of being accepted.

Researchers at Harvard University explored this behaviour in depth. During one study, they arranged for a librarian to shut down all of the photocopiers in the university library except for one, creating long lines of students who wanted to use that machine. They then deployed researchers who asked students to allow them to cut into the line, using two different approaches.

The first group asked “Excuse me, I have five pages. May I use the photocopier?”

The second group asked “Excuse me, I have five pages. May I use the photocopier because I have to make some copies?”

Students allowed researchers who used the second request to move ahead 50% more often than those who used the first request. This is astounding, because the second request adds no substantive information to the first request, and is a frivolous justification. What other reason would the researcher have for wanting to enter the line other than to make copies?

So why the better response rate? The answer lies in the power of the word “because”. Humans are essentially programmed to build mutually beneficial relationships based on reciprocal efforts to fulfill needs. Humans are also territorial and naturally resist others imposing their will on them. The researcher who simply asks to cut into the line will be resisted more often than not. The researcher who offers a justification for cutting the line stands a far better chance of success because the student believes they are doing something to willingly help someone with their need.

The same phenomenon can be seen when vendors and purchasers haggle over price. Effective hagglers offer justification for their positions, “Your competitor has the same product at 50% less.” or “This is smaller than I had hoped for.” or “If I take your offer, my children will starve!” because consciously or unconsciously they know that offering a justification increases the chances of an offer’s success.

Similar studies have shown that the word “because” is particularly powerful in creating this reaction. Our minds look for shortcuts to arrive at conclusions, and the word “because” is a signal that the other party feels there is a rational need for their request. To the English speaker, the word “because” sends a direct signal to the brain that enhances the chance of compliance, even when it offers no additional information.

Beyond enhancing the chance of acceptance, there’s a secondary benefit to using “because” in your offers. Even if the offer is not successful, the use of the word “because” reduces the chance that the other side will find your offer offensive, illegitimate or overly antagonistic. Even if you are aggressively anchoring and don’t expect your offer to be accepted, using the word “because” will reduce potential fallout and increase the possibility that later offers will be accepted. Offering justifications and using the word “because” will definitely enhance your negotiations. How does this information impact lawyers in the context of a mediation where a party almost never gets to deliver the offer themselves? Is the tool still as powerful? The answer is a resounding “yes.”

The thoughtful mediator will deliver the “because” for you, enhancing the chances of settlement in any particular exchange, which is exactly why you have them there. This technique should not be a license to abdicate your responsibility and let the mediator do the justification work for you. A mediation is your process, and the case is your case. The parties must maintain as much control of the process as possible to meet their needs and reach an agreement. The justifications that the mediator delivers need to be your justifications to maximize your opportunity for success. Using justifications will enhance the mediator’s view of your theory and allow them to be a better surrogate for your position. You should use “because” with the mediator as often as you would with your direct counterpart if the mediator wasn’t there.

Social Proof

The power of the “because” can be further leveraged with an understanding of the science of “social proof.” Humans are herd animals. A decision will be more appealing to individuals if they believe other people are doing the same thing. Peer pressure and fashion trends are obvious examples of this trait, but it also has well-documented power in commercial transactions.

A classic example is a simple change of wording in late-night infomercials. After pitching the product, the “call to action” would be delivered in this format: “Operators are standing by, please call now.” For years, this was the standard approach and results were satisfactory, if unspectacular. A minor variation in this “call to action” resulted in skyrocketing response rates.

The new phrase was “If operators are busy, please call again.” The change was revolutionary for the industry. The first phrase implied that few people were calling, while the second suggested that many people were purchasing the product. Without changing any of the information given to the consumer about the product, the marketers achieved substantially better results by implying that many other people were placing an order.

Another experiment illustrated the same effect in a non-commercial context. A lone researcher stood on a busy city street gazing upwards, as if he was looking at something in the sky. Passers-by rarely glanced up to determine what the researcher was looking at. However, when three or four more researchers joined the first looking at the skies, almost every passerby looked upwards. They weren’t interested in joining the lone stand-out, but they were eager to join the herd.

How does this help counsel in the litigation context? If you align your offer with the position of the herd, you increase the chance of it being accepted. This process can begin quite early. When the parties are told “96% of civil cases settle without a trial,” they are already being primed to resolve their case rather than fight to the bitter end.

A more direct example is the use of case law. Lawyers may submit a case or two to support a position. Unless the issue is a legal one and the decision is from a binding appellate court, it will do little to persuade. It’ll be like that lone researcher gazing up at the skies—lonely and irrelevant to the decision-making process. But if you have five, ten or more cases that suggest a certain quantum or liability split, you amplify your chances for success. The larger the herd, the better. It could even go so far as “we have analysed the last ten years of reported X cases and…” That is a powerful persuader.

Social proof can be created informally without structured back-up. Comments such as “in our office, we have handled many of these cases and have never resolved one for more/less than X” could sway your counterpart to move towards your proposal. The key technique is to align your offer with the position of a herd.

Take Aways

  • Enhance your offers with one or preferably multiple justifications
  • Use the word “because” as part of your offer
  • Arm your mediator with your justifications if you are not making the offer directly
  • Align your offers with the perceived position of the herd

Ethical Issue: Neutrality of the Mediator, The Coin of the Realm

To obtain mastery of the strategic aspects of mediation, counsel need a good understanding not only of their own ethical obligations and procedural role, but those of the other parties. This includes having a sound grasp of the mediator’s role and constraints. We plan to discuss the ethical issues of mediators in each issue of the Negotiator’s Edge to enhance counsel’s decision-making power.

A question often asked of mediators and perhaps even more frequently discussed among mediators is: what’s the mediator’s role when there is a significant power imbalance between the parties? What should a mediator do if a party is not advancing an argument that could strengthen their position? Does the mediator sit on the sidelines and allow the process to unfold naturally or do they intervene to level the playing field or educate a party about something they are missing?

Despite the great deal of discussion around this issue, the options of the mediator are clearly dictated by the core duty of neutrality. A mediator must maintain neutrality or they have failed the process and the parties. A clear corollary of neutrality is that a mediator should never take an action that either harms or enhances the position of either party. If a mediator changes the actual balance of power, they have erred.

This does not mean that they should not engage in vigorous and forceful risk analysis with each party, as this process is the heart of any good mediation. But risk analysis doesn’t change the real positions of either party or impact the underlying balance of power in the relationship. Mediators must keep their thumbs off the scale, but should discuss what shifting strengths and weaknesses between the scales might result in. The role of a mediator doesn’t include offering advice to either side on enhancing their position or weakening their opponent’s.

For example, let’s say that Party A hasn’t advanced an argument that the mediator believes would enhance their position. What can and should the mediator do? If the mediator advised Party A they are missing a potentially useful argument, they would be either enhancing Party A’s position or damaging Party B’s position, clearly violating the principle of neutrality. They would also be reducing the chance of settlement by effectively moving the positions of the parties further apart. The thoughtful mediator wouldn’t make this mistake.

In the same circumstances, the mediator might ask Party B if they’ve considered the risk they would face if somewhere down the road Party A made that argument. This would allow Party B to modify their negotiating stance based on a perceived risk, without the actual strength of either party’s position being modified. Here, the mediator hasn’t placed his or her thumb on the scale, but rather is exploring the risks of a potential change in circumstances.

While the mediator should never advise or decide on behalf of a party or place his or her thumb on the scale, it can often be helpful to discuss contingencies that could manifest. In every circumstance, the mediator’s duty to remain neutral and impartial is paramount.