ADR Practice Tips and Insights by Myer J. Sankary
Of the thousands of legal disputes that are filed in court each year, a small percentage are actually resolved by trial! Indeed, with the growth of alternate dispute resolution over the past 20 years, almost all legal disputes are settled without trial. By now, almost all attorneys who represent clients in litigation matters, frequently participate in the “primary” (not “alternative”) system for dispute resolution — either mediation or arbitration. Today it is likely that most lawyers will spend substantially more time representing clients in mediation or arbitration than in trial. Yet lawyers devote more time learning litigation and trial techniques than learning how to represent their clients effectively in mediation and arbitration proceedings.
Attorneys are often lulled into a sense of self-assurance by the relaxed atmosphere of the mediation proceedings and by the knowledge that mediation is non-binding. Most advocates feel assured that they know how to negotiate the best deal for their clients even though most have never read an article or book about the subject, nor have they taken a course on negotiation strategies. They prefer to rely on their instinct and intuition, or on whatever seemed to work in their last mediation. On occasion, they may pick up a new idea from the mediator or from other attorneys. But don’t be fooled. Have a plan, follow it, and stay alert to the dynamics of the mediation process.
Know When to Compete and When to Cooperate
The best negotiators understand the tension and timing of competition and cooperation in achieving deals that are satisfactory to the negotiating parties. Game Theory is fundamental to understanding negotiations. In their book “Coopetition,” (1996) Barry Nalebuff and Adam Brandenburger, from the Yale Management School and Harvard Business School, argue that every human interaction can be understood as a game in which there is both cooperation in creating value and competition to divide it up. Thus, combining these two aspects into one unified behavior, “coopetition,” expresses the strategy of effective negotiations. In his recent book on legal negotiations, Harvard professor Robert Mnookin argues that lawyers who make deals and resolve disputes are at the same time creating value and claiming value for their client. “Beyond Winning: Negotiating to Create Value in Deals and Disputes,” with Scott R. Peppet and Andrew Tulumello, (Harvard University Press, 2000). These experts suggest the best negotiator knows when to compete and when to cooperate.
Understand the Other Side
A key concept in strategic negotiations is to develop a plan that not only includes a thorough understanding of your side of the case, but also an understanding of the opponent’s case as well. Effective negotiators put themselves in the shoes of their opponents and try to evaluate the strengths and weaknesses of the case as viewed from the other side. When a negotiator understands his opponent’s perspective of the case, he is better able to anticipate what will be needed at the right moment to address and overcome the objections of his opponent.
Start at the Goal Line and Work Backwards
Effective negotiators have an opening, middle and end game strategy. They think through where they want to end up, and work backwards to develop tactical maneuvers that will lead them back to their goal. Legal negotiations is a dynamic process of human interactions at many levels, perceived and unperceived, played in the shadows of a range of possible judicial outcomes with each party gambling on the strength of their prediction. Define your goal – eg. the terms of an acceptable agreement, and work backwards – then develop proposals and counterproposals that will lead to where you and your client want to end up.
Before and After the Mediation
Counsel should write out a plan of attack before the mediation. After the mediation, write a summary of what happened that explains why counsel believes the mediation was either successful or not. This will be an excellent way of tracking your experience and reviewing what worked and what didn’t.
Top Tips For Settlement Success
Here are some suggestions to remember in preparing a case for mediation:
Above all, spend some time reading about how to negotiate, and develop a style and method that suits your personality. Devote as much effort improving your negotiation skills as you do for trial and you should be handsomely rewarded!