The Negotiator Magazine

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Negotiation Defined

Negotiation is generally defined as "a communication process we use to put deals together or resolve conflict." In negotiation, litigators have control over both the outcome and the process of a dispute. Procedurally, the parties in negotiation are responsible for designing the process. Similarly, by definition, the parties have control over the outcome.

This is in sharp contrast to arbitration or trial where power is clearly delegated. In traditional litigated cases, a litigator relinquishes the power over the outcome because decision making process is given to someone else. All procedural decisions are taken from parties. Like a cafeteria, litigated cases require you put down a tray and select things from a menu such as which discovery processes or motions you might utilize to get an advantage over the other side.

Since it is a communication process, like most things which require communication, sometimes problems occur that end up causing the dispute to reach an impasse. This is where civil litigators and even the court system have chosen to introduce Mediation as a preferred option for resolving disputes.

The reason that mediation has worked so well for litigators is that it is basically a facilitated negotiation. While we have evolved beyond the years when family law practitioners preferred non-lawyers to mediate their cases, the current crop of litigators can choose from well respected retired judges and established trial lawyers to serve as mediators. This gives the litigators a sense of comfort because the neutral has more than likely been in their shoes before and can speak the same language. The neutral knows that the goal of the facilitated negotiation is to get the case closed, which is something the litigator was unable to accomplish.

Top Ten Factors For Getting The Other Side To The Table

The key to a successful facilitated negotiation is getting the other side to agree to mediate in the first place. In order to set yourself up for success, there are several factors to consider when convening a mediation:

1. Never request mediation within two weeks after you’ve lost any motion, no matter how insignificant.

2. The most profitable mediation on a great case generally occurs before expert discovery, although it can happen closer to the trial date.

3. The most profitable mediation on a so_so case occurs close to the trial date, assuming your experts have not betrayed you.

4. The most profitable mediation on a bad case occurs before you file the lawsuit, or as soon thereafter as you can manage with a straight face.

5. Ask for mediation in a letter which accompanies a motion to compel discovery. Offer to postpone the motion if the other party agrees to mediation.

6. Where you have a belief in the merits of your case, send out a letter demanding mediation, and specify your good faith estimate of the value of the case. Indicate that you will only agree to mediation if the other party fully understands and acknowledges your approximated value. If you then show up at the mediation and the other party comes in substantially below that approximated value, leave promptly.

7. Allow the judge to propose mediation at the initial status conference.

8. Mediation often works best for a defendant after a summary judgment motion has been filed, but before the hearing and before plaintiff's opposition is due. Mediations often work best for plaintiffs just after the summary judgment motion has been denied. Schedule accordingly.

9. Consider a cost basis analysis. This means that for every month you have the case open, the time you have committed to the case increases, yet there is no guarantee that the value of the case goes up.

10. Many provider organizations will take on the responsibility of contacting the other side about the prospect of mediating. This can be effective since these organizations usually have people trained to sell the process in a way that doesn’t make you look vulnerable.

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