Tag Archives: Legal Counsel

Mediation Guided by the Rotary Four-Way Test

First, a reminder of the Rotary Four-Way Test – of the things we think, say or do

1)     Is it the TRUTH?

2)     Is it FAIR to all concerned?

3)     Will it build GOODWILL and BETTER FRIENDSHIPS?

4)     Will it be BENEFICIAL to all concerned?

This is a follow up to my January 12 post on employment/personnel decisions and whether or not these principles are useful in mediation.

As I noted before, the test seems at odds with the self-determination component of mediation. In other words it’s not the job of the mediator to decide if an outcome is fair or beneficial to all, rather the question is whether the parties agree.  That said, going back to these basic principles could aid the mediator, advocates/attorneys and the parties to move toward a lasting resolution to their dispute.  Some thoughts:

Mediator. Mediators can get stuck in a process/technique rut.   However, for the best mediators, dispute resolution is never one size fits all.  This is well illustrated in Jeff Krivis’s book Improvisational Negotiation.   Consistent with the Four-Way Test, mediators should focus on the process, creating an environment that is fair, gives all sides an opportunity to be heard and to receive necessary information without being unduly pressured.    Encourage the parties to consider the global impact, asking whether there are business or personal relationships that will be affected – damaged or enhanced – by continuing with the dispute versus resolution.  This approach is more conducive to creative solutions that litigation cannot provide.

Advocate. What is an attorney advocate’s ethical obligation of candor in a negotiation where there’s also a responsibility and a commitment to get the best deal possible for the client?  Every continuing legal education program involving negotiation or mediation involves some form of this hypothetical:

A party to a lawsuit tells her lawyer to go out and get the case settled so long as it’s under $35,000.  Can her lawyer make a counteroffer to the opposing party for $25,000 saying “that’s all the authority I have” or “that’s our bottom line”.

Lawyers can spend hours of discussion time parsing out whether their ethical obligations of candor are violated under these scenarios.  So put on that ethics hat during the negotiations and ask: Has any information been withheld or communicated that would void the deal if it ever got out?  Remember, also, that a client’s definition of winning may not be the same as the lawyer’s. Recognize – and help the client articulate – interests beyond the monetary outcome, including business and personal relationships.

Party. One benefit of mediation and a negotiated settlement can be the ability to keep information private – but will it come out?  Is it something that makes something material you’ve said untruthful?  When evaluating the deal you’re willing to make, how will it impact not just you, not just the opposing party but people in your family, your organization and your reputation.  There will be a tomorrow and the next day and the next day to live through.  Whether or not you reach an agreement, you’ll be interacting with people, businesses, and the public – is this a decision you’re prepared to live with?

You Say Tomato…

I made a presentation last week on “Gender in Mediation: Negotiation & the Gender Divide” (sponsored by Associates in Dispute Resolution – my friends and colleagues Larry Rute, Patrick Nichols . . .  http://www.adrmediate.com/) and am REALLY glad to have that behind me.  Don’t get me wrong, I am fascinated by this topic and enjoyed every minute of the reading I did to prepare.  It’s just that there’s so much out there and it’s such a complex and nuanced subject that it’s hard to distill into an hour’s worth of useful, organized information.  It’s also a pretty volatile topic – we all have a gender and we all have a point of view.   Cutting to the chase  – and without going into the whole topic of stereotypes and perceptions and why or whether men and women think and communicate differently and who is better at negotiating under what circumstances –  here are some thoughts about how mediators, advocates or parties to a negotiation can help keep gender from getting in the way.

First identify where gender-nuanced dynamics may play a role in communication/negotiation, such as: advocate and party; opposing parties; mediator advocate/party; opposing advocates; multiple representatives of the same party (insurance company, spouses, business partners, company president, human resources professional, etc.).    Then:

  1. Recognize Your Own Biases & Preconceptions.  We all have them.
  2. Better Define the Process.  Studies show that gender tends to have more of an effect in high ambiguity negotiations than where the process is strictly defined and understood.
  3. Identify Gender Triggers. Men tend to negotiate better in a highly competitive negotiation while women tend to do better when negotiating for others.
  4. Take Control of the Shadow Negotiation.  The shadow negotiation is kind of like the metadata of electronically stored information and is that underlying web that encompasses how people treat each other, who gets heard, how cooperative they will be.
  5. But Avoid Appearing To Be Judgmental.  You know what I mean. . .
  6. Don’t Automatically Identify Competence By Gender Or Stereotypical Behavior.  Beware of assuming woman lack subject matter expertise.
  7. Don’t Misread Style Differences. Don’t mistake a more collaborative or cooperative approach to mediation as a signal of weakness in position or resilience OR an effort to manipulate.
  8. Properly Perceive The Impact Of An Apology.  It isn’t always a sign of weakness or admission of liability.
  9. Consider The Effect of Gender On Credibility.  Think strategically about demonstrating competence and trustworthiness to develop credibility.
  10. Understand Gender Styles To Keep Them From Interfering. Bringing subconscious biases, assumptions and behaviors into our conscious mind will help us to be more effective in dispute resolution.

When They Say It’s Not About The Money (It’s About The Money)

We spent a terrific Labor Day weekend in Highlands, North Carolina hosted by our friends along with the amazing Don and Stacey Schlitz from Nashville.  Lots of great music and good times.  Don and Stacey (who is a lawyer as well as a musician) sang us a song they wrote with the chorus above.  From all my years of litigation and mediation, it’s a pretty good rule of thumb.  Truly, it’s never only about the money.  The emotions underlying any dispute are complex.  That’s certainly the case in employment litigation.  Relationships with peers and supervisors at work are important to us and we spend as much awake time with these people as our families.  When those relationships turn on us, it’s really hard.  And it’s not just the employee who was fired – well-meaning managers or human resource professionals have an emotional stake also.  Even if it’s just two businesses fighting, companies are people.  Emotions range from competitiveness to anger to desperation to a desire for revenge.  And sometimes it really isn’t about the money at all – it’s getting closure.  But when they SAY it’s not about the money . . .

Improving the Lawyer/Client Relationship in Employment Litigation

It has been an eye opening experience to work closely with parties transitioning from thinking about fighting to thinking about settling.  The plaintiff turns to her lawyer with a hurt, puzzled look on her face:  “I thought you believed in my case.  You said we were going to tell the jury exactly what happened to me and they would find the employer guilty!  Why are you pressuring me to settle?  Is it because you just want the money?”  Or the Vice President of Human Resources levels a stony glare at outside counsel:  “We didn’t hire you to sell us out, we hired you to defend this case and bring in a defense verdict.”  While every circumstance is unique, I’m seeing enough common misunderstandings to warrant these observations about what lawyers can do better.

  1. Explain the process.  I mean really explain the process.  Even if your client claims to be ultra super sophisticated about litigation – especially if your client claims to be ultra super sophisticated about litigation.  Let them know what can be expected every step of the way in terms of timing, expenditure of resources and individual time investment.  Consider using a written outline that you can go back to, even if this isn’t a client that requests this kind of information.
  2. Define your role.  That is, tell the client what you’ll be doing is working hard to obtain the best possible solution to the problem that led to the litigation.  If you’re any kind of litigator, you should be able to sell this.  Because if you think about it, even for the most hard-nosed, see you in court advocate that really is what you do.   If you get the case by pounding the table with your rhetoric and delivering a rousing closing argument without putting that into context, you lose an opportunity to set realistic expectations for the client.  Because we all know that the vast majority of cases settle.  Sometimes we’re in a position of recommending to the client that they accept an offer that’s hard for them to swallow.  Other times we find they think it’s a sell out to consider settlement at all.
  3. Educate on possible outcomes.  You’ve had clients with unrealistic expectations about what the lawsuit can do for them.  Vindication!  Millions of dollars! Give me my job back and get everybody who was mean to me fired!  Humiliation!  Change corporate culture! Make me feel better!  Just leave us alone! In employment cases it’s mostly just about money and only in the settlement process is it possible to achieve some of these goals.  For example, the company can achieve certainty that this angry plaintiff won’t apply for every job that’s posted, risking a retaliation or failure to hire claim over and over again. A plaintiff can extract a commitment from his former employer to do diversity training, or investigate a brewing problem.
  4. Set and periodically reassess goals.  This process can identify unrealistic expectations and allow those to be sorted out before they turn into a conflict.  It gives a format for discussing evidence that is developing.  For example, “I know we discussed a goal of filing a motion for summary judgment on the retaliation claim, but now that I’ve seen the email discussing ….. that’s no longer realistic – it would just be a waste of your money.”  Or “we did define one of your goals as reinstatement, but the company’s attorney has made it clear that won’t be an option.  We have to look at other options.”
  5. Prepare the client for the multiple hats you’ll wear.  During the course of the litigation you’ll be communicating confidentially with your client; developing a workable relationship with opposing counsel that doesn’t hurt your client; strategizing; evaluating risks; negotiating; presenting your case in the strongest light possible.  In order to be effective, you use different styles for each of these roles.  A client that doesn’t understand what you’re doing and how, for instance, having a cooperative relationship with opposing counsel can benefit him/her with extensions of time, limits on discovery fights, etc may think those friendly communications indicate a sell out.  Delivering the closing argument in a mediation may polarize the parties and your own client would be better served with a focus on how to motivate the other side to settle.  Because they’ll never agree with you that they are the spawn of Satan – but they might agree it would be a good idea to end the fight.

Good Old Hindsight

I’ve spoken on the issue of doing a post mortem on a wrongful discharge case a couple of times recently, to Human Resource Managers and to lawyers.  Bottom line – hindsight is a really valuable tool   And we rarely take the time to look back and really critique ourselves.  When we do, there are patterns, common mistakes, opportunities, efficiencies that we can learn from.  It’s not rocket science.  We ought to do it every time.  I have a short article on my website aimed at lawyers.  My colleague on the Management Labor & Employment Roundtable, Jathan Janove (Ater, Wynne LLP – http://www.aterwynne.com/ ) did a piece for the February 2004 edition of HR Magazine entitled “It’s Not Over – Even When It’s Over” describing for human resources managers the “invaluable lessons by conducting an employment litigation post-mortem.”