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By Steven G. Mehta

What Would You Do if….

A lawyer tells you that he has complete control of his client and that she will accept his recommendation. You suspect the client will not be as accommodating, but the attorney insists you don’t need to meet with his client.

Tracy Allen: I won’t mediate with attorneys who don’t allow me to work with them in the presence of the client. I am very careful to honor the atty-client relationship and never come between a client and an atty. I also won’t take a proposal to the other side unless I have a clear approval from atty and the client. If we are working on “I can recommend it to my client and I think my client will agree” then the proposal comes with no assurances.

Gig Kyriacou: It is important for the mediator to have some contact with all of the parties, even if this is limited to introducing yourself and discussing the process. I think this all starts with the trust relationship that you build with the attorneys. If the attorney feels that you will not undermine their authority, they will almost always honor a reasonable request to have access to the client. In those occasions when they are reluctant, you must walk through the things you will be addressing with the client and seek their input and permission as to how to proceed. I have never been denied access to the client when I have followed this approach.

Mike Young: This one is more difficult because you are now getting away from Easy Negotiation Strategy and into Hard Mediation Ethics.  When must a mediator ensure that the actual client (not the mediator’s client — i.e., the lawyer who hires him — but the actual litigant trying to get his or her life back in order) is involved in the process and cognizant of what is going on?  Or when can the mediator simply accept the attorney’s representation that the client is on board?  It’s an easy answer from an academic perspective; I can hear my Mediation Professor’s wise words back at the Hogwart’s School of Mediation:  “It is the individual party’s dispute, and hence the individual party’s resolution.  That party must be part of the process and must make the ultimate decision.”  But this ignores reality where many parties, particularly unsophisticated parties or those not familiar with our legal culture, hand their decision-making responsibilities over to their counsel to negotiate for them the best deal possible.  It makes our lives as mediators much more difficult when we can’t tell whether the individual party is really THERE in mind and spirit, or is there only in body.  I think it is incumbent that we mediators ensure that the individual party knows what is going on at all times, and that if she is surrendering her negotiating and ultimate decision making authority to her counsel, that she is doing so knowingly and voluntarily.  We mediators run a risk when we do this — we can tick off the very counsel who hires us who may think we are meddling in his attorney/client relationship, and such can be a career inhibiting move if done too often.  After all, even mediators need clients.  On the other hand, mediators also run a risk of losing a settlement by blindly following the attorney’s representation of client control when it turns out that the control is not as complete as the attorney expected and the now-disenfranchised client walks out the door.  There is also that ethics thing — allowing the actual disputants to be in charge of their own dispute and resolution.  It is a balancing act to be sure, but one that should be weighted heavily in favor of ensuring client involvement, even at the risk of upsetting an attorney or two.  (Besides, what’s a day in mediation without an upset attorney or two, I mean really.)

By Steven G. Mehta

What Would You Do If….

A party states that it has a bottom line number and has previously asked the mediator to identify it as a bottom line number.  The party has changed its mind but doesn’t want to lose face in front of the other side.

Gig Kyriacou:

I always caution parties to avoid making absolute bottom line offers because they are limiting their own options.  I let them know that I would rather see them make a less generous move to avoid impasse and to leave open the opportunity for further negotiations including the possibility of mediator’s proposals or other concessions that may get them where they want to go without having to lose face, or worse yet, credibility in future negotiations.  I simply do not allow bottom line proposals without first walking through what that means.  Again, when the parties understand the consequences of such a move and the possible alternatives, they almost always choose the right course.  It is just about thoroughly communicating the consequences and the better opportunities available.

Mike Young: Easy, blame the mediator.  Everyone else does (including my wife:  “Why did you let Eva Longoria and Tony Parker break up?”  “Uhhh, sorry?”)  In the mediation context, one party could simply say:  “I don’t want to move to this number; it’s beyond what has originally been authorized and what I think is fair; but the mediator has impressed on me the need to get this done, and if this new number will get it done, I’ll reluctantly go there.”  Or, use a Life Line:  “I’ll have to make a call to see if I can get more authority for this….”  Or go for the combo-excuse in the context of a Mediator’s Proposal:  “I can’t go beyond my bottom line unless I know the new number will close the deal, so if you Mr. Mediator, were to make a Mediator’s Proposal at X, I would call my client to see if I could get authority for that number.”  Or if all that trickery fails, try something really crazy…like the truth:  “I’ve changed my original bottom line based on the information I have learned from this mediation session.  I’m now willing to go to X.  (p.s., don’t expect me to move again.)  And I had nothing to do with Eva and Tony’s break up.”

Tracy Allen: Which is exactly why when the party tells the mediator to tell the opponent it is the bottom line, the mediator shouldn’t take the bait.

By Steven G. Mehta

What Would You Do If…..

A party receives what it considers a small counter-offer and refuses to make a another offer/demand unless the other side substantially changes its position.

Tracy Allen: Which response will provoke the customary “I’m not bargaining against myself.” In order to make an intelligent counter, the non-responding, stubborn party usually needs information. Aside from being insulted by the offer and thus “pissed off”, it’s too easy to dig in and not engage. Why not try a different approach? Why not go fishing for information to see if you can get any clues on where the opponent is going or wants to end up? How do you suggest we go fishing? What bait should we use? What do you need to know? How best to get that information? It’s ok to send a signal that you are dismayed by the offer and you can show that dismay in your response as well as in the message the mediator takes with it. This is a situation where parties have to allow the process, i.e. the dance” to get underway. They have to set a rhythm and begin the dance. Unless the stubborn party came with no intention of exploring settlement, one can usually get

something moving.  We also know that there are two kinds of responses to a perceived lousy offer- an in kind response and a defective response. The refusal to respond is a defective one. An in kind response would be to make another counter and if that is again met with what is perceived to be a defective counter, then the stubborn party can become “defective” too.  One or two attempts to extend the olive branch usually doesn’t bite you in the a– if the parties came to make a deal you can always pull back in later rounds. Use the mediator as well to send the proper negotiation messages so the dance can proceed.

Gig Kyriacou:

I tell people all the time to reward good behavior and punish bad.  In this context, I validate their concerns and tell them to respond in kind… but with some level of movement.  No one likes to bid against themselves so there must be some reciprocal response.  Another alternative that I find works is when a party states that they are going to choose to ignore the offensive move “this one time”, but if there is a similar move the next time then there will be no response.  This is very effective in getting the attention of the opposition and you rarely see such behavior continue unless the party is looking to end the negotiations.

Mike Young: There is no one answer to this.  It may be that this is exactly the right move to reset the bidding and get the parties into a constructive negotiating zone.  On the other hand, maybe this is just a power play that is destined to send the process swirling down the toilet.  Or maybe one party is just testing the resolve of the other to see what will happen.  As this tactic generally occurs early in the process, I see my job at this stage to keep the music playing and the parties dancing, even if there is a little toe-stomping going on.  Let’s make sure the party considering the Non-Move response has thought it all the way through, has considered the options and the possible consequences, understands the risks and potential payoffs, and makes the Non-Move knowingly and intentionally.  And if that party, after due consideration, wants to make the move — or non-move — I would make sure the Non-Move is presented in a way that expresses the message…but keeps the parties dancing (I know, it’s a sloooow dance at this point).  A Non-Move obviously has the serious potential of backfiring, but if it is an appropriate response under the circumstances, the message should be able to be presented without derailing the train.  (I love the mixed metaphors.)

By Steven G. Mehta

What Would You Do If….

A party tells you at the beginning of the mediation, my bottom line is X.  Either you get that number or better, but do not beat me up to take me off my number.

Mike Young: I don’t beat people up…it leaves bruises and is bad for business.  I’m also more than happy to have parties stick to their bottom line for as long as they like.  But I will take the time to remind them exactly whose dispute this is…by holding up a mirror for them.  If a party really wants to hold the line at X, that’s fine with me, but they’d better have a well-planned negotiation strategy that gets them to X at the end of the day or be prepared to lose a desirable resolution based on their own unnecessary intransigence.  I would also happily work with the party to develop a negotiation strategy that might achieve the desired bottom line, while also suggesting that the party keep one thing in mind — it may very well be that the opposing party also has a bottom line…and the two bottom lines may not overlap.  I also reserve the right at that point to bring everyone to the precipice of their Bottom Lines to wave to one another across the gap and contemplate what we should do next.  At that point people will have to decide, are we close enough to get this done?  Are there non-monetary items we can throw into the mix to bridge the gap?  Have we really explored all interests, views, positions, demands?  Can’t we do something to avoid another dreaded Mediator’s Proposal?  And then it’s up to the parties, with my help, to decide whether to push a little harder.  They usually do and the deal gets done.

Tracy Allen: Again, I don’t allow this situation to occur if I can help it. I tell parties I never want to know their bottom line- for a variety of reasons. First, they lie and since I consider all people I am privileged to mediate with, my friends and colleagues, I hate it when my friends and colleagues lie to me.  Second, if a party asks me “Is that it? Is that their

bottom line?” I don’t want to lie to the person asking so I can honestly say “I don’t know.” I do ask parties to send me signals however, that they are reaching their limit, getting close to their end figure. That way I know how to close a small or large gap, and have intelligence to help direct their bidding war.  I also tell them that by drawing a line in the sand and taking a “final position” (which is never “final” like the game show- is that your final answer?”), they hae lost control of the negotiation and we all know people like to control the negotiation. They make it too easy for the opponent to say “no” and walk away. Why not make the other wide work too? Then I usually tel the story of the swimmer in the English Channel: You’ve been  swimming for 23 hours and have lost track of where you are, you have 100 yards to go but the fog is so thick that you can’t see

land and have no clue where you are. You can’t imagine one more energy drink, one more power bar, the fogs horns are sounding and you can’t hear the person on shore with infrared glasses who knows you are so close, yelling to keep swimming. If you got into the boat at that moment and didnt’ know it was only 100 yards, you’d kill yourself. So don’t do that. Also, don’t back yourself into a corner such that I have to figure out a way to extract you from that spot while saving your face.

Gig Kyriacou:

This is the mediator’s fault.  I do not give the parties an opportunity to tell me their bottom line at the beginning.  Most attorneys know that I do not want to hear bottom lines at the outset.  I tell parties and counsel that those who set forth their bottom line at the outset usually do worse in the end.  I tell them that I expect everyone, including myself, to not get fixated on any particular position or dollar amount.  The whole purpose of mediation is to fully evaluate your risks and settlement options to make a smart decision about settlement taking into account all of the facts, legal issues and practical considerations.  You cannot do this by prejudging your situation.

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