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April 6, 2016 No Comments

By Lynn Roberson

Lynn Roberson

Lynn Roberson, Esq.

 

After 36 years as a litigator (and counsel for many parties in mediations, as well as a mediator myself) I have put on my neutral hat as a full-time mediator at Miles Mediation.  During those 36 years, I represented both plaintiffs and defendants, but I spent most of the past 20 years as defense counsel for defendants in personal injury cases, particularly in premises liability matters involving serious injury and arising out of violent crime.  As I seek to provide effective service as a mediator in personal injury cases at Miles Mediation, I am sometimes asked why plaintiffs would agree to use my services given my extensive background doing defense work.

During the time I represented defendants in personal injury matters in mediation, I would frequently ask the plaintiff’s counsel whom they would prefer to use as a mediator because it was my strong belief that, in order for a mediation to be successful, the party plaintiff needed to have some trust in the process, and feels he or she was being heard by the neutral.  In addition, I felt that the plaintiff’s counsel would be more receptive to the defense arguments when presented by a mediator with whom the lawyer had a rapport and mutual respect.  I found over many years that this approach to mediation was more likely to lead to mutually satisfactory results.

Given the above considerations, plaintiffs counsel would be wise to consider the rapport and credibility of the mediator when addressing the folks in the defense room.  A seasoned defense lawyer has a good deal of experience talking with and advising insurance adjusters and their supervisors, as well as risk management people with self-insured companies.  A good mediator has to do “reality testing” in both the plaintiff’s room and the defense room to persuade both parties to reach a reasonable resolution.  If the defense attorney and the adjuster believe the mediator fully appreciates their concerns, and they respect the professional credentials of the mediator, the mediator is more likely to be effective in communicating the plaintiff’s arguments to the defense.

Also, an experienced defense attorney will have a great deal of experience in evaluating cases for defense clients and advising them on the value of a claim or suit.  Such a lawyer is very familiar with the lawyers, judges and jury pools in the jurisdiction where the case is filed (or likely to be filed) as these factors can impact the settlement value of a case.  A case venued in certain urban jurisdictions may have a very different value for settlement than that same case filed in a remote area.  Where the jury pools are heavily weighted with generous, liberal jurors, your mediator needs to understand that circumstance the same as the circumstances where the attorney has a significant record of success.  A good mediator stays abreast of verdicts and settlements in the areas where the mediated cases are filed so he or she can speak with authority concerning a reasonable evaluation for the pending matter.

Someone trying to build a good business as a mediator cannot afford to develop the reputation of a biased neutral, or business will soon dry up.  All effective mediators understand their role as a neutral, and their sole goal during mediation is to assist the parties and their attorneys in reaching a resolution which is acceptable to both sides.  If the case resolves, the mediator is successful, regardless of how much the case settles for.  The parties are the ones who control whether or not they accept a settlement offer or demand, not the mediator.

Given all these considerations, plaintiffs and their counsel would be wise to consider retaining a seasoned defense attorney to assist them in resolving their claim or suit since that mediator really knows how to talk to the people in the defense suite.


 

About Lynn Roberson, Esq.

Lynn is a past president of the Atlanta Bar, the largest voluntary bar in the Southeast. She is also a past president of the Georgia Defense Lawyers Association. In 2013, Ms. Roberson received the Conspicuous Service to the Stonewall Community award. In addition, she was selected as the 2013 recipient of the Fred H. Sievert award, which is presented by the Defense Research Institute. In 2015, State Bar of Georgia’s Committee to Promote Inclusion in the Profession awarded Lynn its Commitment to Equality Award. She was recognized for her enduring devotion to the goals of promoting diversity in the legal profession and the provision of opportunities for members of underrepresented groups.

Learn more about Lynn. 

 

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February 12, 2016 No Comments

Family Law Tips: Dividing Personal Property
by Chris Annunziata

image of family law mediator Chris Annunziata

The Rollins Case Study

I would venture to guess most family lawyers are familiar with the Glen and Danielle Rollins divorce saga. It is a cautionary tale about what can happen when two spiteful people with deep pockets get divorced and decide to fight over, of all things, doorknobs.

The Rollins reached an apparent settlement of their divorce in 2013, in which Danielle Rollins received essentially a $15 million cash settlement and Glen Rollins got the couple’s recently renovated $7 million Buckhead mansion. Despite the apparent agreement, Danielle must not have been too happy that Glen was awarded the mansion that she spent the time and over $4 million to renovate and decorate.

As reported, she took several items that had been awarded to Glen Rollins. According to Glen and court documents, Danielle also significantly vandalized the property, put “deep scratches on a marble vanity, ripped curtains, ruined a carpet and damaged antique crystal sconces.” He also claims she took 100 doorknobs “worth tens of thousands of dollars,” and replaced them with doorknobs from Home Depot. After months of continued litigation, motions for contempt and hearings, Fulton County Superior Court Judge Lane ordered Danielle to pay Glen more than $500,000 in compensation, contempt damages and attorney’s fees.

Now, I would wager that most of your clients don’t have so much personal property that they can fight it out over $300,000 in doorknobs, curtains, and patio furniture. That doesn’t mean, however, that clients won’t fight tooth and nail over their personal property or vandalize each other’s property out of spite. I once spent three hours in the Paulding County courthouse helping a couple painstakingly and equitably divide more than 30 firearms. Even when the parties both say, “Oh, no worries, we can divide the personal stuff,” there is no guarantee a fresh dispute won’t arise.

Tried-and-True Methods for Dividing Personal Property

Most clients also don’t have the disposable income to pay both you and a mediator to divide up their property. So what can you do when the clients can’t decide who gets the washer and who gets the dryer? Over the years, I’ve come across several creative methods you can suggest to help the parties reach a resolution on their own.

The “Shotgun” Approach

Giving credit where it is due, I learned of this method from Charles Medlin of Bovis, Kyle, Burch & Medlin. Charles called it the “shotgun” method but I’ve also seen it described as the “spinning shotgun.”

First, the parties agree to a list of the disputed assets and then decide which party “chooses” first. A round of “Rock, Paper, Scissors” works. The parties don’t simply choose items from the list like the NFL draft. The party that goes first gets to choose an item of property off the list and also gets to assign a dollar value. The other party then has the option to “buy” the item or “sell” the item to the other side at that price. The item and its value are then placed on the appropriate side of a ledger sheet. This process continues with the roles alternating for each successive item of property.

At the end, the total value of items on each side of the ledger is calculated and any difference in value can be equalized with other property. The threat that one party will eventually have to “pay” for overvaluing the property should mitigate the risk of one party setting inappropriate values.

The Blind Bid method

In a blind bid approach, each party creates a list of the disputed property and then places a “sealed” bid for each piece of property. The highest bidder “wins” that piece of property, which is then placed on the appropriate side of a ledger sheet. Once the bidding concludes, the value of the items on each side of the ledger is totaled up and any difference in value can be equalized with other property. Much like the shotgun approach, if one spouse intentionally overbids for the property they may have to “pay” for it elsewhere.

The “Last Cookie” Method

Another method is derived from the age-old solution to the problem of two children fighting over the last cookie. One spouse is instructed to draw up two lists of assets. The other spouse then gets to choose which list of property he or she wants. Because the spouse who drafts the list doesn’t control what he or she gets, they have an incentive to produce two lists which they would feel equally comfortable receiving.

While nothing is fool-proof, keeping both parties involved in the process should help increase post-divorce satisfaction resulting in both sides feeling as if they received a fair distribution of the personal property.

Parting Thoughts

Of course, if the parties want to mediate or arbitrate, I’m available to help you. For those of you who haven’t mediated with me at Miles, I invite you to come by and check it out. Everything at Miles Mediation is geared toward making your mediation as productive as possible. We provide all the amenities you could want – a convenient, comfortable, confidential space; catered lunch and snacks; audio-visual aids, WiFi and teleconferencing for the out-of-state party – so you can focus on the task at hand: settling your case.

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October 12, 2015 No Comments

By Glenn Loewenthal

Maybe as a neutral I am overstepping my bounds a little here, but my intentions are in the right place. I see a trend in mediation that I think is leading to fewer settlements and that I think can be fixed or reversed. However, I think there is an easy fix to reverse that trend.

First and foremost, let me say that nobody should ever expect the other side to pay mediation costs. Whether the mediation is court ordered, suggested by the plaintiff or suggested by the defense or insurer, there is no built in expectation that any party will pay the other’s mediation costs. Some plaintiffs will come into a mediation with the expectation that because the defense suggested the mediation, and even picked the time, place and mediator, that they will or should pick up the plaintiff’s mediation costs. Again, no party should have this expectation, as such an expectation only leads to disappointment when they find out that is not the case. And disappointment can lead to other bad feelings that result in a failed mediation.

I do think it is a good idea for parties to address the issue of mediation costs when they agree to mediation. For example, if the defense knows at the outset that no matter the outcome of the mediation, that they know they will not pay the other party’s mediation costs, that information should be shared with opposing counsel so that they will not have any expectation coming into the mediation and can plan their strategy accordingly. Likewise, the economics of some cases may be so small and tight that a plaintiff will only want to mediate a case knowing that if the case settles that the mediation costs will be paid. So it is a good idea for counsel to address this topic when the mediation is first discussed and scheduled.

Now, for my thoughts on who should pay the mediation costs, when they should be paid and why. It is really the when part of the equation where I think reality it completely backwards from where it should be. What I see happening in reality is that in most cases that settled for $100K or more, the defense/insurer picks up all the mediation costs without a second thought. In cases that settle between $50K and $100K, the defense/insurer is picking up the mediation costs about half the time, and in cases that settle for under $50K, the defense picks up the mediation costs about 25% of the time. I think this is a flawed equation, and if reversed, would lead to many more settlements. Here is why.

Mediation costs, unlike the settlement amount, in most cases, is a direct cost to the plaintiff. In other words, it comes directly out of or into the plaintiff’s pocket, whereas settlement funds are usually split between the plaintiff, the attorney and any lien holders. In cases that settle for over $100K, the plaintiff is going to settle the case regardless of whether the defense/insurer picks up their mediation costs. However, for cases under $50K, and in particular cases under $25K, I have seen cases not settle solely because the mediation costs were not paid by the insurer. In these smaller cases, every penny makes a difference to the plaintiff, and because it is a direct cost to the plaintiff, that last thousand dollars is more important in mediation costs than it is in a settlement offer, which is split money. If I have seen this happen, and I am only one of thousands of mediators across the country, it is certainly happening on a daily basis. The defense/insurer is missing out on a great opportunity to settle more cases.

So I say to you insurers (because surely they will read this and listen to me) if you are paying mediation costs in larger cases and not smaller cases, stop it. Reverse that strategy. Stop paying on the larger cases and pay on the smaller cases. I guarantee you will settle more cases, and isn’t that the reason you want to mediate these smaller cases in the first place. Small cases are not economically smart cases to try for either party. However, the insurer is in a greater position to absorb this cost of litigation. Not only will you settle more cases, but the person you settle with may be your past, present or future insured, and the goodwill you buy will pay off tenfold. I can’t tell you how many times, in UM cases, the plaintiff leaves the room having decided to change insurers solely based on the mediation and the perception of how they felt they were treated. So especially in UM cases, I would encourage insurers to offer to pay the mediation costs, even in cases that don’t settle. The goodwill you buy is worth it. In college at UGA I majored in Risk Management and Insurance. We learned a lot about doing cost/benefit analysis. If insurers look at mediation costs using a cost/benefit analysis, their strategy would change, and they would start paying more mediation costs in small cases and less in large cases. In the end, the insurer would save more money, not only based on the analysis from above, but also because small cases are usually shorter and less expensive than larger cases. If you are a defense counsel reading this, I hope you will pass it on to your adjusters and managers for consideration.

Glenn Loewenthal is a member of Team Murphey; to learn more about him or to book him for your next mediation visit Milesmediation.com

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June 30, 2015 No Comments

By Gregory J. Parent, Team Leader

Introduction

Mediation has arrived as an accepted medium for getting cases resolved, both pre-

suit and at every stage in the litigation leading up to and including the weekend before a

trial is scheduled to begin. In the last decade, mediation has exploded in popularity and

attorneys on both sides have embraced its effectiveness. While they may not always

agree on a case’s value, opposing attorneys almost always agree on exhausting settlement

negotiations at mediation in an effort to minimize risk, save litigation expenses, and

expedite resolution of the case before spending countless hours prepping for trial on cases

that should be settled.

Except for the first and second year attorneys still learning their craft, most

defense attorneys have been to more mediations than they can count on their fingers and

toes. It certainly isn’t uncommon for more experienced defense attorneys to attend a few

dozen mediations every year. Even the most experienced of defense attorneys, however,

only know HALF of the story, because they have never sat through a mediation in the

plaintiff’s room.

Preparation for mediation by the parties may be based on any number of factors.

Depending on the whether a case is being mediated pre-suit, early in the discovery

process, or on the eve of trial, the participants may have varied styles and goals in their

preparations for a mediation. For the mediator, however, the disciplined preparation for

mediation is almost always the same. The flow of a garden-variety mediation may vary a

little from one mediator to another, however, their individual styles will almost always

follow a familiar pattern. That being said, it’s not necessarily a formula or a rigid

structure, but there is definitely a method to the madness that mediators employ when

trying to help you settle cases while they are away in the other room.

Establishing Rapport

“Rapport” can be developed in any number of ways. While the following is not an

exhaustive list, these are five steps the mediator should consider which can prove to be

invaluable in starting the mediation off on the right foot. (1) Introduce yourself to the

plaintiff; (2) welcome them to their environment for the day; (3) determine whether they

have ever been in a lawsuit or mediation before; (4) try to discern whether the plaintiff’s

attorney has control of his clients; and (5) get a thumbnail summary of the case facts and issues.

Introduction and Welcome to the Plaintiff

The calling card of every full-time mediator is an ability to forge bonds with

anyone. It’s been said that good mediators are part salesman, part coach, part teacher, and

part psychiatrist. Mediators are usually dynamic, out-going personalities with a

seemingly innate ability to make people feel comfortable. Mediators must also be humble

enough to open doors for customers, get coffee, and help customers carry their lunch

plates to their individual mediation rooms.

If you think about it, although the attorneys and adjusters understand how cordial

and un-confrontational mediation can be, it’s brand new to the plaintiff. Setting aside

those few career plaintiffs who make a career out of trying to “game” the system, most

plaintiffs at mediation are first timers. And they are nervous, anxious, or downright

petrified about the process. Often times a warm welcome and introduction by the

mediator is all that is needed to break the ice and make a plaintiff feel comfortable and at ease.

Help Define The Plaintiff’s Environment

Much like a cruise director or a concierge at a fancy hotel, it’s the mediator’s job

to help define the plaintiff’s experience at a mediation. Coupled with the introduction is a

mini-tour of the facilities or specific directions on where to find things such as the

restroom facilities. In other words, a mediator’s first job is often showing a timid plaintiff

how to use a Flavia coffee machine or where to find Diet Cokes in the fridge. A good

rule of thumb to gauge a first time plaintiff’s nerves is whether you see food and coffee in

front of them in their room before the mediator arrives. If not, you can bet a mediator will

escort them to the kitchen so that the plaintiff can avail themselves of the breakfast

spread in the kitchen. Coffee and food are familiar and help to get plaintiffs acclimated

to the new surroundings. Because no one has an appetite when they are nervous.

If the plaintiff has come with a relative or friend who they directed to sit on the

couches in front of the TV, mediators may often invite them back into the room. Your

mediator is trying to determine whether the friends or family numbers are like a comfort

blanket. If so, we want them in the room to help reassure the plaintiff.

Our secondary goal with inviting them into the room is to have all of the

influential people in the room at the same time, so that we can address them together with

plaintiff’s counsel, so that they do not undermine the attorney or the process. Nothing is

more detrimental to a mediation than the armchair quarterback who poo-poo’s a whole

day’s worth of mediation progress, without ever having participated in any of the

negotiations.

Gauging the Plaintiff’s Prior Litigation History

The mediator wants to know the sophistication level of the parties and counsel

with whom he or she is working that day. Usually it’s a simple question: “Have you ever

been in a lawsuit or a mediation before?” Overwhelmingly the response is a resounding,

“No.” Occasionally, however, someone has gone through a divorce mediation. The

mediator may, at his or her discretion, use that opportunity to contrast the difference in

personal injury or business litigation disputes and family law mediation. Regardless, it’s

important to understand the plaintiff’s litigation experience and mediation background

prior to the opening session, so that the opening remarks can be tailored accordingly.

Determining Whether the Attorney Has Control

Where there has been no prior communication with plaintiff’s counsel, the initial

meeting is also an opportunity to establish arguably the most important factor in a

mediation—whether the attorney has control over his or her client. Before the mediator

asks the million dollar question, however, he may try to build the plaintiff’s confidence in

their attorney, by sharing an old war story if he and the attorney are friends. Or, in cases

where the mediation is a first introduction for both the attorney and the mediator, a more

direct “out of ear shot” question is in order: “Are your clients listening to you?”

What Are We Here For Today?

Secondary to understanding the interplay between plaintiff and his or her counsel,

is an initial determination as to the merits of the claim. If a mediator hasn’t already

worked with the attorney or gotten any advance materials to review, they may use this

time to listen to the details of the case. While no firm judgments can be made only

hearing one side of the story, it’s possible to develop a sense for whether the case has

some potential to get resolved based on the plaintiff’s evaluation of the case.

What You See In The Defense Room Before The Opening

Chances are, you’ve worked with your mediator before. Your initial meeting is

almost like two old friends catching up. After hearing about the kids, the latest vacation,

or how the ‘Dawgs did in their last game, the mediator wants to know your perception of

the other room. And, as Paul Harvey used to say, we want to hear “the rest of the story.”

But that much you’ve already seen.

Building Credibility During the Joint Session

For those of you who mediate regularly, you can probably recite the lion’s share

of your regular mediator’s opening remarks. You are familiar with their explanations,

their anecdotes, and their preferred metaphors used in welcoming the parties to the

mediation. There is, however, a specific purpose to our opening. A mediator wants to

establish credibility with the plaintiff and EACH and EVERY other person in that room

with their opening remarks. While the styles may vary, every mediator wants to (1) talk

about his qualifications and experience and background, (2) introduce the parties and

their respective roles; (3) explain the process of mediation and a general timeline or

detailing of what to expect throughout the day; (4) listen with a nuanced ear and observe

every minute detail of the interactions of everyone in the room.

Mediator’s Back Story

Most attorneys have either worked with the mediator before or have researched

their mediator online and/or through other colleagues. Even though you know them, it’s

important for the mediator to still say it in the opening in front of everyone. If there are

subtle changes in the “script” of the mediator’s background, it’s likely done to touch

upon an earlier connection made with the plaintiff. It’s also important to show that there

is one voice in a position to help “be in charge” of the proceedings so that there is a

perception of order and fairness. If nothing else, the mediator needs to firmly establish his

or her neutrality.

Introduction of the Parties and their Roles

Beyond just knowing everyone’s name and title, it’s sometimes helpful if your

mediator briefly defines everyone’s “role” within that opening session. It can be as

simple as establishing that the defense attorney and the adjuster are going to be working

together to evaluate the plaintiff’s case. But it can also be more inclusive and identify the

goals of the parties. The mediator may help diffuse the emotional aspects of a mediation

by stating that the defense is there to make a business decision and that it’s not a personal

attack against the plaintiff. Mediators vary in their approach, but it often helps take the

sting and anger out of the room when the roles of the defense are explained in the

opening session by the neutral. When a plaintiff hears from an objective neutral that the

defense has no “ax to grind” with the plaintiff, but rather that they are just doing their

jobs, it can help set a collaborative tone from the start.

Explanation of the Mediation Process

A mediator should explain in general terms about what to expect. Whether they

describe the individual caucuses or just explain that the mediation process takes time, an

explanation—however long or brief—helps set expectations. Generally speaking, the

mediator should also discuss that lunch will be served and snacks will later be provided.

In addition, the mediator should advise that he or she will provide updates as to how the

proceedings are developing to give everyone a sense of perspective on how the day is

progressing.

Mediator Should Shut Up Listen and Observe

Mediators should be good listeners and excellent observers. During the mediation,

it’s common for mediators to take some notes, but generally speaking, they are watching

the interplay between everyone. Watching the reactions of the attorneys when

information is relayed. Watching the interplay between the plaintiff and their own

attorney as well as the defense team. It is not uncommon for a mediator to observe

reactions or body language that they can later use as leverage when meeting with the

parties separately. In other words, it’s like playing poker—everyone has a “tell”.

Another subtle job of an effective mediator is determining the best avenue or

manner in which each person prefers to receive information, so that the mediator’s input

can be best communicated. Some folks want to here recommendations. Some folks want

to here options. Some folks don’t want to hear anything. It’s the mediator’s job to know

their audience.

Focusing The Plaintiff on Transparency of the Mediation Process

Generally speaking, the first caucus with the plaintiff is always very important for

purposes of further explaining the mediation process. Regardless of where the

negotiations are and whose move it may be next, most mediators choose to meet with the

plaintiff first. The mediator uses this time to address the information shared by the

defense attorney and the adjuster in the opening remarks, especially where legal issues

like liability and causation have been raised. A mediator should not shy away from

delivering sobering news about what was learned in the opening session—especially if it

was tense or heated.

Additionally, during the opening caucus, it’s important to dispel and thwart any

attempts by the plaintiff or counsel to demonize or otherwise paint the defense team in a

negative light. Mediators do not meddle in historic or long-running petty personality

conflicts between defense counsel and plaintiff’s counsel. It is important, however, for

the mediator to distinguish the actions of a defense attorney simply doing his or her job

from what is perceived by the plaintiff to be a personal attack.

Sometimes this is as simple as saying, “The defense attorney didn’t call you a

‘liar’, what they said and what they meant is that the large gaps in your treatment history

raise ‘red flags’ and make them question whether your pain and injuries were still

related to the subject accident and not some other intervening new incident.” The

mediator is not choosing sides in a situation like this, rather, they are cutting through the

rhetoric and any disinformation and trying to focus the plaintiff on the kernels of truth

and objective relevant [or admissible] evidence.

Another thing that mediators explain to plaintiffs in the opening caucus is that

their goal is to bring their attorney information. Mediators often assume the role of the

sailor in the “Crow’s Nest” of an old ship. A mediator is usually a former practicing

attorney who knows the perils and pitfalls in a case when they see them. They can often

avoid the angst of having to deliver bad news by establishing with a plaintiff that they

should want to hear EVERYTHING a mediator can learn about their case—good, bad,

and ugly.

Rather than being tasked with charting a course of action based on the

information, a mediator can simply ask the plaintiff’s attorney, “What do you want to

do?” Such an open-ended question is both a request and an invitation, if asked, to discuss

the merits of the information. Regardless of which way the attorney chooses to go, the

plaintiff gets to see the transparency of the information gathering and how it is shared.

In other words, even if they don’t like what they hear, plaintiffs can feel confident

that their mediator is not employing any tricks or tolerating any gamesmanship

shenanigans between the parties in the process. Some plaintiffs are very skeptical of

everyone in a mediation and the transparency helps placate their paranoia.

Managing Expectations and Determining Motivations

It helps to have good bedside manner when you deliver the sobering news, but

most mediators have already paved the way for talking about the bad news long before it

has to ultimately be delivered. There are any number of ways to forecast the ballpark

where the settlement is likely going to end from far away.

Some mediators portend for the plaintiff where the defense may be going [when

armed with specific information from the defense room]. Some mediators postulate as

though they were “thinking out loud” as to where the settlement numbers might be

trending based on how the offers and demands are tracking. Others seek to use brackets

to help define the ballpark, mathematically speaking.

While it is important and relevant to help guide the plaintiff’s expectations as to

where the negotiations are heading, the mediator needs to also arm the defense with

information as to the plaintiff’s motivations. Many plaintiffs are truly only there the

money. Occasionally, however, some folks just want to be heard. Their motivations are

neither about the money nor going to trial. They simply want to be heard, appreciated,

validated, and acknowledged. Often an apology from the defense team goes a long way in

helping resolve those emotional issues for plaintiffs with those sincere concerns.

When non-monetary issues are the primary motivator, it is incumbent for the

mediator to listen carefully for alternative ways to address the issues standing in the way

of resolving a case. For some commercial clients, gift cards to the business, coupled with

settlement dollars, can help to resolve a case. Other times, the plaintiff may just need to

time to acclimate to their new reality, time to feel like they are being heard, and time to

accept what is being offered.

In all situations where emotions are governing the negotiations more than math

and simple monetary exchanges, the mediator should be providing the defense with a

summary of the “temperature” of the room, so the defense can adjust their expectations

and prepare to let the process play out.

Closing The Deal

After a long day of negotiating, especially where the discussions have been tense

and emotional, but largely productive, it is of paramount importance that you have a

mediator with a sense, a knack, and desire for closing the deal. That mediator has to have

both a long and short memory and be stubborn and wholly unafraid to challenge every

person in both rooms.

A long memory serves the mediator well in trying to close the deal on a difficult

mediation, because the one piece of information needed to persuade one room or the

other may have been something seemingly insignificant that the mediator observed or

heard in the opening session. Much like a closing argument, the last couple of exchanges

in a negotiation need to include summaries of the entire day’s proceedings in the hopes

that one room or the other may budge.

When in the defense room, you’ll see the mediator play the “devil’s advocate”

role and be intentionally obtuse to test your position. Once you’ve heard, evaluated, and

made a final decision, however, the mediator knows that the final moves, if any, are

coming from the plaintiff’s room. What you don’t see is that the mediator is doing just as

much, if not more “devil’s advocacy” in the plaintiff’s room.

A particularly effective tool in helping to show the plaintiff perspective is taking

the difference in the respective positions, however large that number may be, and

deconstructing it to show the plaintiff the “net” amount he or she will recover. Mediators

will show how that number, minus attorney’s fees, minus the likely incurred expenses,

isn’t as big a difference as they thought. Or, the mediator can talk about risk avoidance

and how the money on the table is likely better than their risk of possibly doing worse at

trial. Regardless of the method, the goal is the same and the effort from the mediator is crucial.

Conclusion

Contrary to what you believe, mediators do not control the outcomes of

mediations. We control the process and the flow of information. No mediator has ever

decided a case at mediation. Rather, we control the other aspects of the mediation process

and try to encourage both parties to play fairly.

Sometimes that means we have to serve as translators to help the different sides

see the common elements of the case the same way. Other times, mediators have to dispel

misconceptions or erroneously based perceptions that the parties may harbor. While some

emotions are expected and a natural part of the mediation process, foolish and prideful

emotions are ineffective at mediation. They need to be identified and eradicated with the

help of a strong mediator.

When the mediator is not in your room, he or she is trying their best to build a

bridge between your room and the plaintiff’s room by fostering effective communication

and using their credibility, establishing rapport, or delivering straight talk in a manner

than can best be heard and understood by the plaintiff. All of our efforts are targeted with

the goal of building a mutually beneficial foundation for the parties to explore and

exhaust settlement discussions.

And that’s what the mediator is doing when not in your room.

[Unless he or she is in the restroom.]

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May 12, 2015 No Comments

By Joe Murphey

There’s a reason why, in the early afternoon hours, the hallways and corridors of Miles Mediation are filled with the aroma of freshly baked cookies and movie-style popcorn. Comfort food to the rescue! Behind the doors, in many of the conference rooms at Miles, around this same time, difficult decisions are being contemplated. Read More    »

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March 24, 2015 No Comments
image of family law mediator Chris Annunziata

by Chris Annunziata

Someone needs to make a first offer in every negotiation. Old-school negotiators have typically let the other side make the first move, believing that the party who first put out a number tipped its hand, or ended up overpaying or leaving money on the table.

Modern negotiation theory holds the contrary opinion. Studies have shown that the party making the first offer positively influences the outcome of the negotiation; and that the benefits of making the first offer are powerful – even between knowledgeable, experienced parties. This is due to a cognitive bias known as “anchoring,” i.e., the tendency to give a greater significance to the first offer in a negotiation.

One meta-analysis conducted by Dean Chris Guthrie of Vanderbilt Law and attorney Dan Orr of several anchoring studies concluded that anchoring “has a powerful influence on outcomes . . . [with a] correlation of 0.497 between the initial anchor and the outcome.”* As they put it, “In lay terms, the 0.497 correlation means that every one dollar increase in the opening number is associated with an approximate fifty cent increase in the final sale price.”

And yes, this strong correlation exists whether the study participants were novices or experienced negotiators. When adjusted for negotiation experience, however, Guthrie and Orr’s study found a slightly lower 0.37 correlation between the opening number and the result; or to use his lay explanation above, every additional dollar in the opening number correlated to a thirty-seven cent change in the final result.

A good anchor can also put the other side “off its game.” I can’t tell you how many times I’ve brought an aggressive opening number to the other caucus room and then spent a significant amount of time debating the reasonableness of the opening number rather than discussing how best that party should proceed.

The key to making the anchoring strategy work is to make your first offer as aggressive as possible without being so unrealistic as to make the other side walk away from the table. That should give you some room to move and it allows you to define – rather than react to – the zone of potential agreement.

But what can you do if the other side has already attempted to set an anchor?

First, try not to react negatively to the other side’s initial number. Sure, the opening number may have been aggressive but remember: you’ve done your homework, you’ve spent time preparing for mediation and you know the number at which you are willing to settle.

Second, send a brief explanation of your counter-offer but be wary of editorializing too much about their first move. Send a simple message that you understand what they are trying to accomplish, you have your evaluation of the case, and you will not be swayed.

Third, be aware of – but don’t necessarily focus on – the initial midpoint. You know your top-dollar or bottom-line. It should not matter too much to you that the first few moves suggest a mid-point outside of your settlement range. What matters is the final result.

Finally, rely on your mediator. I am there to help you take stock of the situation, focus your efforts and help move you and your client toward a successful settlement.

*Guthrie, Chris and Orr, Dan, Anchoring, Information, Expertise, and Negotiation: New Insights from Meta-Analysis. Ohio State Journal on Dispute Resolution, 2006; Vanderbilt Law and Economics Research Paper No. 06-12.

To Learn More about Chris or to book him for your next mediation, check out his bio.

 

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