Escape the Tunnel Vision and Settle Faster

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All the necessary parties had gathered for an in-person mediation. But one side said we could not proceed.

“I have just been presented with an expert’s report I have never seen before. I have to depose this expert and probably get my own expert. Then opposing counsel will want to depose my expert. We can’t talk about settlement for months.” As you might expect, a bit of pandemonium ensued.

“Let’s assume this”, I said. “You will secure an expert at some expense. Your expert will say essentially the opposite of what is stated in this report. In deposition, both experts will staunchly defend their opinions. How about if we try to settle today with those assumptions and without the added expense and delay? We’re all here now. If we are unsuccessful in resolving the matter, you can move ahead as you see fit at that time.” Everyone agreed to proceed with the mediation.

Initially, the parties had tunnel vision. Given the procedural status, they fell back on the tactics they had always followed. Our discussion exposed the choice to waste the time, expense, and effort that had gone into convening the mediation versus an unlikely improvement in the parties’ bargaining positions plus added expense and delay for both sides. Considering those choices, the best path was to try for resolution.

After a few hours, the parties agreed to settle.

Note Taking During Mediation – Best Practices

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Of course you want to take notes during mediation. You want to record new information as it emerges. You need to keep close track of demands and offers. But participants’ note taking could take away from the value of this mediation.

Don’t Get Distracted
Currently, most mediations happen over Zoom or a similar app. How many devices are you working at once? Tapping your notes on the same device that is hosting the video could be difficult.

You can be so busy trying to run multiple apps at once that you are paying more attention to the technology than to the negotiation. You can lose your train of thought. You might accidentally close the internet connection and stop participating. This can appear disrespectful or possibly incompetent to others, including your client and the mediator.

Using multiple screens can help. So can using separate devices for the meeting and your notes. If you do take notes electronically, make sure your keyboard use is silent.

Or maybe you should just use paper.

How Mediators Do It

I take notes on a legal pad. Because I need to keep clear who said what, I divide the page vertically. I note everything the claimant puts forth on the left, everything from the respondent on the right.
Note that the area opposite each side’s communications is blank. This preserves the sequence of information disclosures. The image gives you an idea how this happens. You can see that Plaintiff went first. Only one side is putting forth information at a time; the empty space on the other side is blank to reflect that.

Appropriately, participants change their positions during mediation. My notes let me easily see what disclosure elicited what response.

Getting to Settlement
Some negotiation participants are so busy thinking of the next thing they want to say, they aren’t listening to others in the conversation. Good negotiators take advantage of mediation to elicit as much relevant information as possible.

In joint sessions, particularly when mediation occurs in person, visible notetaking on a device might distract or even intimidate an unsophisticated party. Certainly, an attorney can counsel their client to overcome any such issues: “I’m talking notes, too. Notetaking is good. It shows the note taker approaches the negotiation seriously and wants to create an accurate record.”

Whether you take notes electronically or on paper, if you need to note something immediately, don’t be afraid to reflect (loop back) what you have just heard and then take a break. Say, “Give me a second to write down this information.” You need to be listening, not making a note, as the speaker continues.

Be An Architect of Choice

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At every stage in conflict resolution, parties face an array of choices, but they don’t always recognize them.

Can we offer the opposing party more ways to get to an acceptable conclusion? Think of ways to enhance the proposed monetary exchange with other items of value. That might be a resignation or an apology. Parties might agree to a justifiable re-characterization of payment. A claimant might avoid an unfavorable tax consequence or build a retirement account. In some circumstances, a recharacterization could make the defendant’s payment tax-deductible when it otherwise would not have been.

Can we find options which would bring us to resolution more efficiently? That could range from an agreement to cooperate in the discovery process to participation in early neutral evaluation

Does it make sense to spend more money which may or may not produce a more favorable outcome? Before ramping up confrontation, prepare a budget for the proposed steps. How likely is it that an improved result will justify the attendant expense and delay?

This image created with AI
Create an Architecture of Choices
People want to have choices. Your job is to manage the negotiation to present options. Choice architecture nudges people toward choices that are in their best interest. Some parties may be inexperienced or poorly informed. A choice architect will make it easier for those parties to make a good choice.When parties have the ability to choose from alternatives which have been fashioned to meet their needs, they are most likely to take one of those options. Regardless of which side of a conflict you are on, you need to consider how the choices can fulfill all parties’ interests. (Interests are what people actually need, typically not the negotiating position they initially presented.)

You are more likely to get to resolution if you can present your offer as a group of choices. While that could be as simple as itemizing exactly what will happen if the parties don’t reach resolution, an array of more positive choices would be more attractive.

Some parties are so focused on their own position that they are unable to see the range of choices available to each party. As mediator, my job often includes pointing out those choices and asking parties to consider and balance them.

The Anna Karenina Principle of Mediation

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All successful mediations are alike; each unsuccessful mediation is unsuccessful in its own way.

OK, maybe you are more familiar with the actual first sentence of Leo Tolstoy’s 1878 novel Anna Karenina:
“All happy families are alike; each unhappy family is unhappy in its own way.”

The Anna Karenina Principle
This mantra is so vital to our understanding of psychology that it led to a theory called “The Anna Karenina Principle.” The principle holds that though no one factor can guarantee success, many factors can lead to failure.Anyone who has participated in a bunch of mediations can attest to the relevance of the principle to settlement negotiations. In all successful mediated settlements, parties prepare for and embrace the negotiation process. They take full advantage of the mediator’s role as sounding board, experienced knowledge source, and pacifying influence. In unsuccessful mediations, one of the participants has gone off on their own path.

Unhappy In Their Own Way
Some participants come to mediation without having taken the time to thoroughly research the facts and applicable law. They lack an understanding of the foundation for the negotiation to succeed.

Another aspect of this dynamic is the party who refuses to consider how the opposing negotiators view these same elements. Their preparation ignored the steelman arguments.

No participant should be surprised by how mediation works. It is the advocate’s job to educate the clients. Thoroughly educating the client includes a discussion of a range of potential reasonable outcomes. Yes, there may be surprises, but an attorney can tutor a client to expect the unexpected.

Conversely, the client who is surprised by the mediation process or who hears important information for the first time, though that information has long been in the file, is likely to balk at even the most generous settlement terms. The resulting lack of client control can derail any mediation.

Everyone Wants To Be Happy
In Anna Karenina, characters seek personal happiness, sometimes sacrificing an important desire in favor of one the seeker wants more. Sadly, when passions are out of control, the result can be tragic.

In mediation, a party may have to surrender a deal point they previously considered necessary in order to achieve the best settlement. Every mediation participant wants to leave feeling happy. Getting to settlement avoids anxiety, expense, delay and uncertainty about the outcome. Settlement is better than throwing yourself in front of the moving train of an impending trial.

Ain’t No Fairy Godmother Coming To Help You

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I see parties in mediation who seem to think the facts and law of their case will magically change. They act like their position is the only tenable one; they give no credence to an opposing view. They don’t prepare for the mediation. Maybe they’ll get it together just before the trial; maybe they won’t. Meantime, time passes, expenses mount and hostility increases, all of which makes settlement more difficult.

You want a sprinkling of magic fairy dust? Here’s how to make that happen.

Prepare Well in Advance
Make sure your opponent has everything they need to understand the value of your case. Secrets only result in unrealistic offers and demands. You must understand all the nuances of your own case and your opponent’s.

Understand the Dynamic of Negotiation
Negotiation is an exchange of information which results in reasonable give and take. If you come in like a bully, asking for the ridiculous and refusing to budge off your position, even a fairy godmother can’t help you. You are just wasting everyone’s time.

Mediation isn’t the place to try to crush the opposition. It’s about trying to find a resolution that benefits everyone. Successful negotiators work to understand each side’s needs rather than wants. They listen carefully. They propose reasonable solutions.

A settlement is a compromise. Make sure everyone on your team understands that as part of the preparation process.

Take Advantage of the Mediator’s Skills
No, the mediator isn’t the fairy godmother you’re hoping for. But she is a neutral listener with loads of experience who can guide the parties toward a reasonable resolution.

She can help you identify issues, including some you may not have thought of. She can help parties brainstorm an array of solutions. She’s not going to give you the answers, but when you fully participate in the process, she can help you find them.

Time for a Reality Check
Nobody’s going to magically swoop in and resolve the dispute short of a risky trial or maybe even an appeal. The only people who can make this happen are the participants. Don’t wait for anyone else to take the initiative—that just leaves you in the same place.

Proactive negotiators keep working at it. They make successive settlement offers, even when the other side is not responsive. Don’t be afraid to initiate the settlement process. It might not be easy; negotiation is hard work.

The real magic of settlement is in your own hands.

Five Ethical Guideposts for Mediation Success

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Despite a continuing plea for civility from pretty much every professional quarter, many parties come to mediation with a Rambo mentality. Keeping certain ethical guideposts in mind is a better way to efficiently settle.

Honesty
California lawyers are bound by the rules of Professional Conduct. That includes Rule 4.1  which mandates truthfulness in statements to others: “In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person…”

No person engaged in negotiation, whether or not they are a lawyer, should knowingly lie to the others in the negotiation.

Dignity and Respect
Every participant is entitled to be treated with respect—even if you think their position is outlandish. The dispute is in this posture because of the potential for an adverse result. The best choice is to try to see the opposing party’s point of view.

Screaming, throwing files and papers, or walking out the door insults the others involved in the process. Personal attacks and inflammatory language are always counterproductive. This behavior demeans the actor more than it does those against whom it is directed.

Courtesy is an important negotiation tool.

Prohibited Warrior

Take Responsibility And Give Credit When It’s Due
What actions or omissions led to the current state of affairs? If someone acted inappropriately or even simply failed to mitigate when they could have, recognize how that impacts the value of the case and adjust your negotiating stance appropriately. A carefully worded apology can do wonders for facilitating resolution. Sometimes a promise to avoid a recurrence can be part of a settlement agreement. One of the benefits of mediation is that all communications made solely within the mediation are statutorily confidential and cannot be introduced as evidence.

Don’t Make Things More Difficult
The best way to get to settlement is to clear the path. Don’t bring in frivolous or unrelated issues. Don’t drag out proceedings just to create delay; neither clients nor judges like that outdated defense technique.  Observe applicable law and norms. Play by the rules

Work Hard
Thoroughly prepare your case while remaining cost-efficient. Make successive settlement outreaches.

Fully inform your client or insured of important developments. Communicate on a regular schedule even when it seems like nothing has happened rather than leave others wondering about status.

Talk to  the mediator in advance to educate her about your view of the facts, the law, and the parties’ personalities. Engage fully in the mediation process. Even cases that do not settle in mediation often do settle shortly thereafter through the parties’ commitment to the process.

The Minor Injury Blows Up Again

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While there are a number of points of differentiation, a new opinion from the Iowa Court of Appeals again demonstrates the value of settling and getting out early.

I’ve Seen This Before
Employee Heather Blasdell injured her ankle in November 2012. The following year, this morphed into lower-back pain and depression resulting from the ankle injury.

Stop right there. Do you think the parties tried to settle the case while it was still an ankle injury?  How about in 2017, 2018, 2019, 2020? I don’t know beans about Iowa Workers Compensation law. Maybe parties aren’t allowed to cash out workers compensation claims in Iowa.  But this situation immediately brought to mind many California claims I came to know very well.

Heather’s diagnosed major depression continued until August 2015. Therapy notes show she thought about suicide, but she had “no plans” or “no intent” to act on those thoughts. In September 2016, Heather died at her home of a drug overdose. The state medical examiner found the manner of death to be “undetermined.”

The surviving spouse sued for death benefits. An important issue was whether Heather had willfully taken her own life rather than accidentally overdosed. Another issue was whether the spouse qualified for a death benefit because they were separated at the time of her death. The parties also argued about the amount.

Heather Blasdell died in 2016. The parties have so far litigated for eight years before a commissioner, the district court, the appellate court, the state supreme court, and a further appeal in the appellate court. which then affirmed the district court’s ruling to remand to the commissioner. It appears the amount of the award at issue in 2016 would have been just over $10,000.

Remote Video Mediation – What We’ve Learned Since 2020

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In October 2000, I created a presentation for CEB (Continuing Education of the Bar) entitled Quelling Fear of Video Mediation. Since then, mediators and participants have become more comfortable and more adept in using video platforms. And we’ve all learned a lot. But some things haven’t changed.

No Travel
Perhaps the biggest advantage of video mediation is the elimination of the need to travel. That means not dealing with traffic which would otherwise frazzle some participants before they even get to the mediation.

It also means that there is no longer any excuse for out-of-towners not to attend. In the past, notwithstanding instructions from the mediator that all necessary personnel must attend, mediation participants would often hear that the person who actually had settlement authority was thousands of miles away.

Has remote mediation eliminated this problem? Not on your life. We still hear it. In fact, books about negotiation counsel that “I can’t agree because I have to check with someone who is not available now” is a good technique. I get that it works when you are at the car dealership without your spouse, but it frustrates the serious intent of participants at a (possibly court-ordered) mediation. It’s also pretty disrespectful of the mediator who spent time preparing, often without compensation for that preparation.

Remote mediation eliminates the potentially considerable travel expense for those who must fly and stay in a hotel to attend the mediation.

You’re in Your Own Space
Some participants can feel intimidated in a law office or mediation facility conference room. Some of that anxiety decreases when they are logging in from their own couch or desk.

People are just more comfortable. They can also take breaks to get the food or drink they want without a lot of expense. True story: I once conducted an in-person mediation where a participant did not eat anything that was provided nor that was available at a nearby snack bar, because the food was not Halal. As a result, as the day wore on, the participant became cranky and the mediation adjourned without resolution. Food would not have been an issue if the participant had access to their own provisions. [Yeah, I know, the attorney should have foreseen this issue and counseled the person to bring their own food, but that’s not the way it happened.]

Even in remote mediations, participants should dress appropriately. Judges have complained that lawyers sometimes dress inappropriately. Appropriate clothing includes covering up from the waist down. You might have to stand for some reason or otherwise change your camera’s direction. It’s not that big a deal to put on a pair of trousers. Show respect for the mediation process, including the mediator and other participants.

Zooming in from your own work space also eliminates the “Oops, I didn’t bring that” issue. While participants can often access left-behind documents stored in the cloud, occasions still arise where something relevant is miles away and not available electronically. Working from your usual chair lets you grab that item.

A huge advantage is that remote participants can profitably use the down time that inevitably occurs when the mediator is caucusing with other groups.

Scheduling
Even when mediations were conducted in person, it was always more convenient to mediate than to wait for a court hearing. Mediations can happen as soon as all parties are available and don’t have to happen within court hours. Mediations can last as long as needed. Now that there is no need to book a facility, mediations can happen even faster.

Some Things Stay the Same
Mediation was always a way to save time and money. Mediation is confidential and private. Communications made within the mediation, including in anticipation and for follow-up, are not admissible in civil proceedings. Unlike open court, there is no record, so no precedent is created.

The dynamics of mediation allow attorneys to provide insight to the mediator which they could not otherwise convey. Instead of a hallway, now this happens in electronic breakout rooms.

Caucusing facilitates communication among hostile parties. Again, electronic breakout rooms have taken over for physical shuttle diplomacy. Now, the mediator electronically moves between rooms. She can convey information in a way to facilitate settlement rather than inflame passions.

Because nothing binding can happen without the parties’ agreement, mediation promotes a high degree of satisfaction, whether in-person or by video.

Technology Concerns Remain
Don’t be overconfident. Make sure you are skilled in the technology, especially if you haven’t used it in a while. Just because you thoroughly know one platform doesn’t mean you are proficient in every platform. Zoom is not Teams is not RemoteMeeting.

Those of us participating in remote proceedings might be more comfortable now, but what about the clients? Professionals should still spend time educating clients/insureds about what to expect and how to prepare. A practice session is still a good idea for new users.

If the client can’t manage or is intimidated by the technology, consider bringing that person into your office even though everyone else is remote. Anyone helping someone use remote mediation technology during mediation, whether in your office or in their home, must identify themselves and sign off on the confidentiality agreement.

Technology glitches can still happen. Be prepared for internet or app freezes. Stay calm. Exit and sign back in. Try a different device. Your mediator should be available by phone to help participants use alternate media.