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How we resolve our disputes

Thursday
Sep112014

Economics, Coase Theorem & Mediation

An excellent article appears in the current edition of the Verdict on Justia.com. It discusses the economic principle that has come to be known as the Coase Theorem in the context of recent reports of disputes about reclining seats on airplanes. Specifically, conflicts arise when people disagree about who has the right to precious space (i.e., in economic terms, a “scarce resource”). More importantly, the absence of a dispute resolution system to handle these conflicts expeditiously has lead to disruptive and sometimes physical altercations. The Coase Theorem says that assigning property rights will lead to an efficient outcome through bargaining and negotiation. However, it also recognizes that transaction costs are ubiquitous and important to consider. These costs include having enforcement and dispute resolution mechanisms in place. The airlines will have to remember this if and when they ultimately establish rules regarding the “right” to recline or to prevent reclining.

The author concludes that “Problems are solved not by assuming them away, but by confronting them and thinking about them clearly.” Indeed, the airlines will have to confront this problem. In order to preserve comfort and peace on airplanes, it is important that they think this through completely and explain their decision coherently. This is what makes negotiation and dispute resolution, and life itself, complex. It is also why I have advocated getting a neutral third-party involved when making such decisions. Things are not always as simple as we wish them to be.

Monday
Aug182014

When is Mediation not Mediation?

Last week, the Milwaukee Journal Sentinel ran an article about the Wisconsin Medical Malpractice Mediation Panels (MMP), with the headline “Medical Mediation Rarely Provides Closure”. The only problem with the article and the headline is that the MMP is not really about mediation.  The Wisconsin Legislature and the Director of State Courts both agree that “[a]lthough referred to in the legislation as ‘mediation,’ the work of the panels is more accurately described as ‘early neutral evaluation.’”  Early neutral evaluation (ENE) is a valid form of alternative dispute resolution, but it is distinct from mediation.  ENE involves an individual or panel giving a valuation of the case early in the process, in order to facilitate resolution.  This is what should take place in the MMP process but it is not what takes place in real Mediation.

True Mediation is one of the most positive developments in modern dispute resolution.  In the truest form of Mediation, the mediator does not decide or force a resolution; rather, using a structured process, a mediator endeavors to work with the parties to develop a resolution.  Mediators have an ethical obligation to provide a process for the informed and self-determined choices of participants.  Self-determination, confidentiality, and creative problem-solving can render outcomes superior to many other dispute resolution processes, including litigation.     

I do not know how effective the MMP is in resolving medical malpractice complaints.  At least one attorney familiar with the process has stated she is unaware of any cases in which the panels were instrumental in resolving the case.  On the other hand, repeated studies have shown that mediation is an extremely successful form of dispute resolution, resulting in a nationwide settlement rate of more than 75%.  Regardless of settlement, over 80% of participants are glad they took part in the process.  True Mediation is highly effective in resolving disputes across a broad spectrum of personal, legal and business conflicts.

Tuesday
Jan212014

How does a mediator spell success?

Like many mediators, I am often asked how many of my cases result in a settlement, as opposed to impasse. The question implies that a successful mediation results in a full settlement of all issues, and that anything less is an impasse, or failure. However, I have found that my clients can get more out of mediation than a settlement or an impasse, if they understand what mediation really is. 

A recent blog post defined mediation as “a negotiation process facilitated by a trusted neutral person having no power of decision.” The key word is “negotiation.” Many times, the parties to a mediation tell me they have already negotiated to no avail, meaning they have not reached a settlement. My question to them, then, is two-fold: First, why not? Why were they not able to agree? And then the finger pointing begins. Each side thinks it is going to prevail at trial, or at least do better than what the other side was offering. And that’s where their negotiations ended. My second question is what did you learn during your negotiations? Frequently, the only thing they learned was what the other party was willing to offer. They were focusing on positions and bottom lines. Of course, neither of them told the other what their bottom line really was, for fear of looking weak or giving away the store. Therein lies the benefit of mediation.

Participants in mediation can tell the mediator what their bottom lines are confidentially, without fear of disclosing their weaknesses to the other side. Thus, a mediator can see whether their is an overlap, or exactly how far apart the parties really are. More importantly, the mediator can focus the parties’ attention on issues rather positions. Who should pay how much to whom is certainly one issue, but there are always others. For example:

  • court costs and attorney fees
  • confidentiality agreements
  • in employment cases — future references, non-compete agreements, or eligibility for unemployment compensation
  • in franchise and dealership cases — the territory definition, accounting requirements, minimum sales or purchase requirements

The list goes on and is limited only by the parties’ lack of perspective and creativity. This is what the mediator must bring to the negotiation process. By opening up the discussion (and making it just that — a discussion, not merely a back and forth volleying of offers and counteroffers), the mediator can focus on all of the issues that might have to be resolved at trial (or even after trial) if the parties cannot agree on a settlement. Then, at a minimum, the parties might at least narrow the list of issues that might have to be resolved by a court.

I measure success in mediation by what the parties get out of it. Sometimes it is a settlement of all of the issues, and sometimes it is merely a better understanding of the dispute — not just the other side’s position, but the strengths and weaknesses of your own case. Like anything else, you get out of it what you put into it. If you go in looking only to find out what the other side is willing offer, that may be all you get out of it. But if you are looking for a better understanding of the issues and interests involved in the dispute, I have found that you can usually do exactly that. And that is what I call success. If that results in an immediate settlement of all of the issues, so much the better. If not, it will certainly lead to a more informed and satisfactory settlement down the road, or a better prepared presentation of the issues at trial.

Monday
Dec092013

Practice!

An old joke relates the story of a tourist in New York City who asks someone on the street how he can get to Carnegie Hall. The native New Yorker responds “Practice!” The same can be said for negotiating. Whether you are using a neutral mediator or an advocate (like your attorney or agent), you should never just go to the meeting place and let the negotiations happen. You have to be prepared. Whether it is your job, your business, a real estate transaction, a loan, or some other major sale or purchase, you need to take charge.  And if it is big enough and important to you, get some help.

Attorney and sports agent Ron Shapiro, co-founder of Shapiro Negotiation Institute (SNI), has written books about how to prepare for negotiations.  He calls his most important advice the “three D’s”:

  • Draft — prepare a script for how you would like the negotiations to go. This will help you sort out what is important to you and what your goals are. What issues do you want to cover, how should you present your requests and how will you meet the other party’s potential objections?
  • Devil’s advocate — review your Draft with someone who can help you find the right way to say what you are going to say, as well as to avoid saying anything you might regret saying. Find a person who has been in your situation and can think of problems you might not anticipate.
  • Deliver — practice with a coach so you become confident and comfortable with your message. You never want to let the other side see you sweat.

If you need help preparing for a major negotiation, find someone who has been there and done that before. An attorney who has represented clients in major litigation as well as served as a neutral mediator and arbitrator is well-suited to play that role. Attorney Michael A. Pollack is one such attorney. Whether your goal is a better job, a better salary, a business acquisition or disposition, or an end to an aggravating dispute, let Michael Pollack help you to prepare and practice. Then, as they say in the theatre, “Break a leg!”

Wednesday
Aug142013

Fly on the wall

How many times have you finished a negotiation and wondered how much more you could have gotten the other participant to agree to? Have you ever wished you could have been a fly on the wall in the other side’s conference room?

My website claims that a mediator can help people negotiate better than they can negotiate on their own. I’ll go one step further. A mediator can help people negotiate better than they can with other advisers, like attorneys, business coaches, accountants and public adjusters. This is not to say that those professionals are not helpful or worth consulting. They are often essential. You can tell your attorney both the strengths and weaknesses of your position in confidence because you have a legal privilege not to have that information disclosed to anyone else without your consent. That is not true of any other business adviser or coach. Only doctors, clergy and spouses have a similar legal privilege. But even your attorney gets the story of your dispute or conflict only from you. Your attorney or business adviser or consultant can serve only one master. Your opposition will not tell your advisers their real bottom lines.

In contrast to this adversarial model of negotiation, mediation has a great advantage. A mediator can talk confidentially to both (or all) sides in a dispute or conflict, and no one—not even a court—can compel the mediator to disclose what is said in confidence. Thus, the mediator can be the proverbial fly on the wall who listens to each participant’s strengths and weaknesses, hopes and fears. By hearing and seeing the bottom lines of all participants, the mediator can determine whether there is an overlap, where everyone’s interests coincide, or whether there is a gap and, if so, how large and important it is. In this way, the mediator can encourage the participants to move toward those positions or solutions where agreement is possible. The mediator can also suggest when a settlement proposal or offer may be worth exploring, and when it may not be worthwhile. As a result, the mediator can prevent the parties from leaving money on the table or from giving away the store.

I am not so naive as to believe that everyone is entirely truthful, even when speaking with a mediator in confidence. I have been lied to. I have played poker, where bluffing is part of the game. But getting people to talk in confidence often discloses real interests and hidden agendas, even when they are prepared or guarded by their own attorneys, consultants and advisers. Sometimes, as a mediator, I am most useful when people ignore me, like the fly on the wall. By simply listening to and observing both participants, together or separately (in confidence), I can spot opportunities for settlement and prevent people from giving up too soon. So let a mediator be your fly on the wall. The mediator cannot tell you all that he or she sees and hears. But the mediator can make your negotiations more productive, with less second-guessing and buyer’s remorse when it is over.