Wednesday, November 24, 2010
Learning to Negotiate
I was also struck by some of the differences between how students approach settlement negotiations as compared to the dynamics of real world practice. In both of the mock mediations I did yesterday, the students playing the roles of plaintiffs' attorneys were much more reluctant to come down from their initial demands than plaintiffs' attorneys generally are in the real world, while the defendants' attorneys were fairly flexible. Maybe that reflects a natural zealousness and sympathy of the law students who represented the class of injured plaintiffs, while the pretend defendants found it relatively painless to offer fake money and didn't have to worry about the effect of their largesse on the business's bottom line. Another thing that students didn't always recognize is that settlement posturing is often highly client-driven. The pretend lawyers I observed yesterday were highly confident of their positions, while their pretend clients were generally inclined to follow the lawyers' recommendations. In the real world, it is quite frequently the other way around. While I do see lawyers who are more aggressive than the clients they represent, more often it is the parties themselves who have unrealistic expectations of what they can achieve in litigation. Clients who are new to the legal process may have no idea of the likely results of litigation, but they have a strong sense of what they believe they are entitled to, whereas experienced attorneys usually have a pretty good idea of the weaknesses of their own case. Lawyers often rely on the mediator to help persuade their own client that a settlement might represent a better outcome for the client than taking on the costs and risks of continued litigation and trial.