Negotiating with terrorists

I went to hear Moty Cristal speak tonight.  Mr. Cristal is an Israeli professor of negotiation dynamics and a negotiating strategies consultant.  His company, Nest Consulting, provides complex negotiations and crisis management training, consulting and operational support to senior executives in the public and private sector in the US, Europe, Asia and the Middle East.  He was instrumental in negotiating the release of Israeli soldier Gilad Shalit last year.  Many people have been critical of the deal, which exchanged more than 1,000 Palestinian prisoners for a single Israeli soldier.  However, Mr. Cristal is an expert in low-trust negotiations.  It is difficult to second guess decisions made in such situations. 

Everyone says you should never negotiate with terrorists.  But everyone does it when there is no other feasible or reasonable alternative.  The argument against such negotiation is that it will only encourage more terrorism.  But history does not support this theory.  No more Israeli soldiers have been captured, nor has there been any attempt to do so since Shalit’s release.  The more time that goes by, the harder it will be to blame any such incident on this negotiation.  The fact is that when terrorists negotiate, they may still be terrorists, but they are not engaging in terrorism while they do so. 

In a civil society, we never negotiate or mediate with parties whose members or representatives have killed members of the opposing party’s group.  And usually there is a deadline for the parties to negotiate a settlement or else a resolution will be imposed on them by some outside entity, like a court.  In the Middle East today, there is no such Sword of Damocles, so there is no motive for either side to negotiate or change positions.  Nonetheless, negotiations do go on.  Small issues constantly need to be resolved, regarding water, electricity, transportation and tourism.  Name-calling (terrorists, occupiers) never achieves anything.  Who knows.  One day, maybe the small negotiations will turn toward larger issues?

Uncertain certainty

In my last post, I noted that predictability was not a hallmark of trial by jury. Long ago, I gave up predicting what a jury would do. Perhaps this is what utilitarian philosopher Jeremy Bentham was thinking when he said “The power of the lawyer is in the uncertainty of the law.” Negotiators for NFL players and owners may also have recognized the risks in predicting the future when they recently settled their contract disputes.

Meanwhile, our nation’s capital seems to be filled with those who are certain that they know what the future holds and what is best for the country. The problem is that at least two groups are so certain, and their proposed policies are mutually exclusive. One side believes we can reduce our deficit (if not balance the budget) strictly by making cuts in expenditures. The other believes that both expenditure cuts and revenue increases are necessary. No one believes that Congress and the President will risk ruining the nation’s credit rating by defaulting on the national debt, but they are playing a dangerous game of chicken. Someone has to blink.

In litigation, many cases settle on the courthouse steps, with a jury in the box, ready to decide the case. These last minute settlements frequently occur because one side finally realizes a flaw in its case or a mistake in assessing the risk of an adverse decision. Settlements made under such circumstances are rarely favorable to the panicked party. Such outcomes are bad enough when they involve private parties involved in civil litigation. They can be catastrophic when the nation’s finances and economy are at stake.

Unfortunately, no independent, impartial mediator appears to be ready and able to save our elected leaders from themselves. The President cannot be mediator-in-chief because he, too, is a politician with a dog in the fight. We can only hope that the impending debt ceiling deadline provides the necessary reality check that brings the warring factions to their senses and produces a solution we can all live with.

Caveat negotiator

An excellent article in the current issue of the Wisconsin Lawyer, titled “Negotiating in the Red Zone,” discusses the risk of legal malpractice liability for lawyers conducting settlement negotiations for clients.  The “red zone” occurs when an opposing party makes an offer within the client’s stated acceptable range but the attorney believes that they can obtain a better offer by rejecting it and negotiating further.  The risk is that the opposing party will terminate the settlement discussions and a trial will result in a worse outcome.  The author argues that lawyers are more vulnerable to professional liability when a settlement opportunity is lost in red-zone situations than in non-red-zone cases.

The article suggests that attorneys fully advise clients of the risks and benefits of continuing negotiations in such situations, and that they document and not deviate from the client’s agreed-on strategy.  It also mentions that this advice should be followed even in mediation.  It does not discuss how the mediator should address or participate in the decision to accept or reject a red zone offer.  At a minimum, the mediator should be aware of the ethical considerations and risks of liability that the attorney is facing.  While the mediator probably has no obligation to advise the lawyer of the heightened risk, doing so could enhance the prospect of a final settlement.  Without a participant’s consent, a mediator cannot disclose whether an offer is a final bottom line.  But the mediator can help attorneys and their clients to intelligently consider and evaluate the risks and benefits of continuing to negotiate versus accepting an offer.  The mediator might also help to document the attorney’s advice and the client’s decision regarding red zone negotiation strategy.  Thus, a mediator may help to reduce the attorney’s risk of ethical problems or professional liability. 

In other words, the article demonstrates another reason to seek out a mediator to assist in delicate or complex negotiations to resolve litigation or civil disputes.

Wishes Can Come True

I sometimes think my wife and I have nothing in common. She works for the Make-A-Wish Foundation of Wisconsin®. I call her a fairy godmother because she grants wishes to children with life-threatening medical conditions. But recently, I realized that we do have something in common.

When some parents are told that their child qualifies for a Wish, they say that they can afford to take the child to Disney World or wherever he or she wants to go. They generously thank the foundation and tell them to use the money for someone who needs it. But Make-A-Wish is not only for poor children and their families. The foundation can do things that no family can do for themselves, no matter how much money they have. They make each Wish special by tailoring it to the child and his or her family, and providing special touches like skipping to the head of the line, meeting with Disney characters individually, or meeting other celebrities (musicians, athletes, TV and movie stars).  Access is the key to providing a Wish that is a special kind of medicine, bringing hope, strength and joy to Wish children and their families at a difficult time in their lives.

I have discovered that being a mediator is not much different than being a wish granter. How often have people involved in difficult negotiations wondered whether they could have gotten a better deal? How much money was left on the table? No matter how good a person is at negotiating, the other side rarely confesses how much further they were willing to go. But a good mediator, under the cloak of confidentiality, can go there. While the mediator cannot disclose confidential bottom lines to the other side, he can make sure that the parties do not walk away from a deal when there is an overlap or common ground. The mediator’s access to each participant is the key to a successful resolution of the dispute or negotiations.

So the answer to the question “Why do I need a mediator?” is much the same as “Why does my child need a Wish?” It is a special kind of medicine that the people involved cannot provide for themselves. After 30 years of marriage, it is nice to know that my wife and I have something in common.

Lose-Lose

I often tell people that the difference between mediation and arbitration is that arbitration, like litigation, is a win-lose proposition, while mediation is a search for the win-win solution. 

Earlier this month, I served as the arbitrator for a home construction dispute.  The home owner wanted to recover the cost of repairing alleged construction defects and completing items the contractor failed to do.  The contractor wanted to recover the alleged balance due on the contract price plus extras.  Each side wanted the other to pay its attorneys fees. 

My ultimate decision awarded some money to the home owner after offsets for money due to the contractor.  I denied both requests for attorney fees.   Both parties submitted requests for reconsideration.  Obviously, neither side was satisfied with the result.  In other words, it was not a win-lose decision.  It was a lose-lose decision.  If either of these parties, or their attorneys, knew what was good for them, they would have negotiated a settlement long ago.  I know a mediator who would have been happy to help them.