Is it just business or is it personal?

After a trial is over, it is customary for opposing counsel to shake hands before leaving the courthouse. While many trial lawyers are highly combative and competitive, a trial is rarely a personal contest between lawyers. While lawyers like to win, they usually go on to fight another day. But some clients have difficulty understanding how lawyers can do battle in the courtroom for days (or sometimes weeks) and then shake hands when it is all over. Of course, a trial is not always the end of the dispute. There can be appeals, reversals and retrials. A trial might be merely one tool to gain leverage in getting the opposing party to do you what you want them to do. Ultimately, a final judicial decision will put an end to the dispute, but it does not necessarily put an end to the enmity between the parties.

Occasionally, litigation can be a “bet the farm” proposition. An attorney representing such a client should find that out before taking on the case. A mediator should also determine the parties’ financial situations as early as possible. Some litigants have nothing to lose in litigation (because they have nothing to start with). Others have everything to lose. Some are looking for vindication. In any case, everyone should keep in mind that the courts have the last word not because they are always right. Rather, they are right because the have the last word. (If anyone can find or remember who first said that, please let me know.)

In a civil society, we all must agree that if we cannot resolve our disputes by ourselves, the courts will do it for us. The alternative is the law of the jungle; survival of the fittest; might, not necessarily right. So, even if the dispute is personal, litigants would do well to learn what attorneys are trained to do:  shake hands and learn to live and fight another day.

Preparation

Mediators frequently complain that parties to mediation do not come sufficiently prepared to reach a settlement. But preparation is a two-way street. Mediators also need to prepare for each session. I prepare by reviewing any information sent to me by the parties, as well as reviewing my mediation training. Some of the things I have learned are recorded in my previous posts. Recently, I have read two excellent articles that help refresh me before each mediation encounter.

The first comes from FINRA’s current newsletter. (You don’t have to be FINRA arbitrator or mediator to subscribe.) The article contains nine tips for a successful mediation. One of those tips is to “be prepared,” but following all of the other tips is the best preparation.

The other article comes from the ABA and discusses 10 things lawyers love and hate about mediators. According to the author, one of the things lawyers love is when mediators prepare beforehand. Seems obvious, but again the other items listed in the article provide fertile ground for preparation by a mediator.

If you are a mediator and have any favorite lists that help you prepare for a mediation session, please leave a comment and let me and my readers know what they are.

An ounce of prevention . . .

Maybe it’s the economy. Or maybe it’s the latest negotiation tactic. Lately, I have conducted several mediations in which one party claims that it will file for bankruptcy if it does not prevail in the pending litigation. Collectibility is frequently an issue in mediation, but the spectre of bankruptcy raises it to a higher level. If a settlement is reached and the party who pays money then files for bankruptcy protection, will the recipient have to pay it back to the trustee to be distributed equitably to all creditors? In one case, the plaintiff alleged its business losses were due to conversion by a business partner — an intentional tort that could not be discharged in bankruptcy.

Of course, many business disputes, especially between partners, can be avoided with carefully worded contracts, partnership agreements or corporate documents. Unfortunately, in the recent cases I have mediated, the contracts and other documents were not carefully worded. In some instances, they were non-existent or, at best, inartfully drafted. Maybe the parties did not feel the need for written agreements, or maybe they were too cheap to pay attorneys to draft them. But I suspect that well-drafted legal documents would have come in handy when it came time to end the relationships or resolve disputes. In the absence of such documentation, the litigation became a he said/she said affair. And the mediation boiled down to “give me what I want” or “accept what I am offering” or else I’ll file for bankruptcy.

A transactional or business attorney’s best marketing tool is to tell a client to “pay me now or pay the litigators later.” In the cases I have seen, parties who scrimped on business planning and documentation have gotten what they paid for. Trouble.

Back to School

It is the end of August, the “back to school” time of year. Yesterday on the radio, I heard a discussion of what parents need to do to prepare their children for the new school year. The participants began talking about the usual books, pens, paper and other supplies, technology, clothing, etc. Fortunately, before I tuned out, they turned to the more important question of how you prepare children mentally. How do you put them in the right frame of mind to learn both the substance of what is being taught as well as how to interact with teachers and other students? It was good to hear a discussion that encouraged parents to get involved with their children’s education. Too many parents these days use the schools merely as babysitters, to take care of their children while the parents are at work. Education should continue at home, not just in the classroom.

The discussion soon focused on problems that arise at school that can turn children off to education, like bad teachers and bullies. What is a parent to do? How involved do they need to be? What lesson should parents give children to prepare them for obstacles at school? The answer was a pleasant surprise to me. In an age where some parents are too uninvolved and others are over-involved (so-called “helicopter parents” who hover over their children), I expected to hear something about finding the middle ground or happy medium. Instead, what I heard was elegantly simple: “Work it out!” The participants in this discussion did not urge parents to monitor every problem, call school to complain about bad teachers or bullies, or help their children out of every difficulty. Rather, they urged parents to tell their children that problems and conflicts will occur, and children must be prepared to work it out and resolve the problems themselves. Of course, this requires children to know how to stand up for themselves and be their own advocates, without resorting to violence. This is something both teachers and parents should help children do. It is a skill that will help them throughout their lives. Sometimes, they will be able to do it themselves and other times they will not. But if they try, they will at least learn when they need to seek help and who to seek it from.

This discussion should be required material in business schools. I have seen people turn their business problems over to lawyers and tell them to “handle it,” when the parties themselves could have worked it out more efficiently if they knew how to communicate and advocate for themselves effectively. Fortunately, many attorneys are skilled negotiators and advocates in and out of the courtroom. But it certainly makes the attorney’s job easier if the client is also involved in and adept at the process. That is a skill that can and should be learned in school. When parties in dispute cannot get the other side’s attention or have trouble focusing on the issues, that is when attorneys or mediators need to be called in. And then it is time for everyone to go back to school and find a way to work it out.

Lost in translation

In the 2003 film Lost in Translation, actor Bill Murray’s character frequently listens to one of his Japanese hosts or directors ramble on for at least a minute in Japanese only to have a translator explain it in English in a few seconds. Murray looks at the interpreter incredulously and says “Is that really all he said?” Obviously, the interpreter greatly oversimplified what was said and omitted any implication the Japanese speaker’s tone or inflection might have conveyed.

In my mediation training, we were taught to try to restate participants’ concerns in other words, showing both concern and understanding. However, even when all the parties are speaking the same language, this technique runs the risk of misstating or oversimplifying a participant’s concerns or interests. This does not mean that a mediator should not try to restate the concerns and interests. Rather, the mediator must understand that the opposing sides in a dispute frequently have different understandings of the facts based upon their own narrative. Even when speaking the same language, something can be lost in translation. As George Bernard Shaw noted, “England and America are two countries separated by a common language.” Similarly, business partners, competitors, buyers and sellers, and even spouses can speak in jargon or terms that are unfamiliar to others. Sometimes, this is what causes the dispute or conflict. Finding common ground requires the parties to be speaking the same language and understanding each other’s terminology.

In one recent mediation, the participants were arguing about whether a computerized system was defective. One party referred to a pass code. The other said there was no such thing, but there was a registration key. Ultimately, it appeared they were talking about the same thing but they thought it was different. Helping them realize what the other was talking about, even in the same language, became my most difficult challenge. Without a mediator, they might never have reached an agreement. I’m not bilingual, but it seems I can help translate English to English.