HOW INERTIA, DELAYS AND DEADLINES AFFECT YOUR SETTLEMENT

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Parties are often surprised by how long it takes to resolve claims. It doesn’t have to be this way. While some causes are beyond participants’ control, parties can proactively take control of the claim to hasten resolution.
The Groundhog Effect
Groundhogs can dig long tunnels without coming up to see where they are. Unfortunately, a common litigation technique is similar. Lawyers send out the same written discovery in the same order followed by witness depositions followed by expert depositions. Maybe after all that, they think about settlement. It makes sense to repeatedly stick your head out of the tunnel to look around and see where you are. You might see a more direct way to get to settlement without continuing to dig.  Yes, a way to settlement, because that’s how more than 90% of all claims conclude.

Courts Enable Delay
The legal system, by its nature, is slow. Courts have limited resources, and scheduling issues can force even simple cases to take years. Discovery disputes, motions, and waiting for rulings all contribute to delays. Even when parties are ready to settle, they often wait for a court event, thereby slowing down the process. Sometimes something happens in the interim that damages the prospect of settlement. The longer a case drags on, the harder it can become to keep up the momentum needed for settlement discussions. On the other hand, mediation can be promptly scheduled as soon as all the necessary participants agree.The Effect of Court Deadlines
Court deadlines can seem like an obstacle, but they often act as a catalyst for settlement. Deadlines—whether for motions, discovery, or trial—create pressure that can push parties to finally engage in serious negotiations. Knowing that a trial date is looming or that the court will impose consequences for missing deadlines often forces parties to weigh the risks of continued litigation more critically. When faced with the prospect of imminent summary judgment or trial, parties are more likely to compromise.

How Mediation Helps
Mediation can be an invaluable tool to overcome these obstacles. A skilled mediator can help break the inertia by encouraging both sides to step outside their entrenched positions and view the dispute from different angles. Mediation creates a structured environment where parties can focus solely on resolution rather than an adversarial setting. The mediation defines a window for settlement discussions. It brings the parties together for the express purpose of finally resolving the conflict.

MAGIC WORDS TO SUCCEED IN MEDIATION

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I recently read Magic Words: What To Say to Get Your Way by Johan Berger. The book does not specifically target legal disputes. Here are some suggestions based on my interpretation of some of his conclusions.

“You’re a Problem Solver”
Berger says using a verb to urge someone to do something is not as effective as flattering them with a noun. He tells how a teacher gets children to cooperate by telling them to be a helper rather than to help. It turns out that the verb implies that the action will be limited, and this is not a great motivator. Describing someone with a noun, however, implies that this is a person’s positive, permanent characteristic.

Urging your negotiating opponent to solve a problem may not be as effective as saying, “I know you’re a problem solver.”

Use the Same Language As Your Listener
I joke that I speak several languages: Lawyer, Insurance, and English. Lawyers and claims people have their own jargon. So do corporate bureaucrats.

Much of the back and forth between professionals goes over the head of others who may be at the mediation table. Talk about fixing rather than resolving the situation. Be specific. When parties do not understand what is being negotiated on their behalf, it can be a recipe for disaster when the proposed settlement blows up

Use Emotion
Berger says focusing on emotion can sell an idea more than relying on facts. Mediation participants sometimes cling to their version of the facts, even when that stubbornness results in the disproportionate expenditure of time, money, and stress. Sometimes it’s better to talk about the emotional relief a settlement can bring—even when the dispute on its face is between companies.

Show You’re Listening
Negotiation lessons always talk about active listening. Berger, too, emphasizes the importance of making someone feel heard. To do that, demonstrate that you were paying attention to what was said. Respond with enough specificity to show you understood the other person’s point. Responses like “That’s interesting” don’t do that. Repeat or paraphrase portions of what you heard.

Mediation is the Place

Berger envisions pathways for a higher level of communication. Mediation provides the setting for a better exchange of information than occurs in the daily hurly-burly of processing conflict.

The Importance of Note Taking

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Before you engage in any negotiation, you need to prepare by understanding the issues both from your point of view and your opponent’s. It’s not enough to have a general idea. You need to spend some time on this and record how you will address these issues.
Too many negotiators forget to pay attention to that agenda once the negotiation commences. They don’t listen to the other side’s information. Confirmation bias may lead them to not pay full attention. This can lead to missing important nuances which would otherwise be pivotal in settling the case.
Take Notes
If you are creating notes to document a discussion, you have to be listening. While  the mediator caucuses with another group, you will have an opportunity to review your notes. You might see a reference that needs to be followed up. Use the mediator to extract as much information as possible at the mediation. She can convey and resolve questions that could not be resolved in discovery.

If the case does not settle at that mediation, an accurate record of the negotiation will help you move forward strategically so you are in the best possible position for the next mediation session.

HOW NEGOTIATION IS LIKE ART FORGERY

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A big interest of mine is art theft and art forgery. Experts estimate that at least 20-50% of the art in the world’s major art museums and on the commercial art market is fake. How could this be?

The Value of Evidence
Three types of evidence support or debunk the authenticity of art:
-Forensics: scientific testing to prove the age of an object or if a work was created using materials which did not yet exist at the time the work was supposedly created
-Provenance: the provable history of ownership of an object
-Connoisseurship: expert analysis of the style of a work, looking at details like brushstroke.

It is this last category which is the stickiest and the most instructive. Experts can render opposing opinions.

That’s My Story and I’m Sticking To It
When an art collector falls in love with a work, they may be willing to ignore or rationalize evidence that conflicts with their idea of the work’s creator. They will insist on the work’s authenticity. One collector paid seventeen million dollars for a work supposedly created by Jackson Pollock. One problem: the last name in the artist’s signature was misspelled.

 

At the other extreme, some experts refuse to modify their opinion to accept a work’s authenticity in the face of overwhelming evidence. The BBC investigative television show Fake or Fortune confirmed the provenance and forensics of a painting supposedly created by Claude Monet. That’s the picture above. Eminent art experts examined the painting and the evidence and concluded that, yes, Monet was the artist.

The Paris-based Wildenstein Institute was the definitive worldwide authority on what works belong in Monet’s oeuvre. However, the Wildenstein refused to recognize the work as genuine on the ground that they believed the style of this painting did not match Monet’s other works. The British owner of the painting sued to force Wildenstein to include the work in its catalogue raisonné of Monet’s works, but the French court declined to intervene. After several unrelated scandals, the Wildenstein Institute is no longer operating.

Confirmation Bias

A well-known obstacle to meaningful negotiation is confirmation bias, the willingness to only accept information which reinforces a person’s already held beliefs. Whether the issue is liability, damages, or the authenticity of an artwork, the refusal to consider all of the evidence and adjust one’s position to account for it gets in the way of an accurate assessment of the circumstances.