Thursday, May 26, 2011


Last week I heard Randall Kiser talk about research he and others have done on so-called "decision error" in taking cases to trial. This study got a fair amount of publicity when it was first published, and is frequently cited by judges and mediators in attempting to persuade parties to litigation that they are generally better off accepting a settlement than in pursuing cases to trial. This research found that about 60% of the time, plaintiffs who reject the defendant's best settlement offer get a worse result at trial. Defendants only guess wrong about 25% of the time, but tend to lose a lot more money when they do.

Even though I agree that parties are usually better off settling than going to trial, the trial lawyer in me is somewhat resistant to the idea that too many cases are tried. These days, it seems more likely that too few cases are tried. (The real problem is that too many cases are litigated to death.) So I have to question the use of the term "error" to describe a rejection of a settlement offer that is better than the eventual result at trial. It seems to me that a lot of people who do that might not be making an error at all. Instead, they might just be willing to accept some risk. Let's say for example, that the parties are able to forecast accurately that a case has a 3 in 10 chance of resulting in a million dollar verdict, a 3 in 10 chance of a defense verdict, and a 4 in 10 chance of some result in between. This is not an uncommon kind of prediction in some of the mediations I see. In such a situation, and even in situations in which each side predicts somewhat different odds of success from the other side's prediction, both lawyers might, and probably should, recommend that their clients accept some number in between.

But what if one side wants to take the risk?  A plaintiff might say, I would rather take the chance of having the jury award me nothing than agree to settle for less than the million that I think I am entitled to. Or a defendant might say, I would rather have the jury award a million dollars against me (which might put me in bankruptcy anyway, or which I can easily afford because I'm so wealthy) than agree to give this plaintiff money that he doesn't deserve.  Parties who make an accurate assessment of their chances, but choose to reject an "average" result offered in settlement might just be people who prefer to gamble and lose, rather than settle. Their decisions cannot be second-guessed simply because they turned out to be wrong, just as if you choose to take another card in blackjack, you cannot be faulted just because the next card busts you. Even if you calculate the odds correctly, sometimes you are going to win, and sometimes you are going to lose.

Sunday, May 22, 2011

Settlement Lawyers

I've been doing something of a CLE marathon the last few days, and so got a chance to listen to a lot of mediators and lawyers talking about the current state of the dispute resolution world (that includes both litigation as well as mediation and arbitration). One thread that came out of a talk I heard by Federal District Court Judge Gutierrez had to do with lawyers' compliance (or lack of compliance) with the rules governing the preparation of cases for trial. One would think that lawyers would expect a better result, whether through trial or settlement, if they properly prepared their cases. But many don't bother. Are they just lazy, or are they inexperienced, or is it that they don't want to incur the expense? Or perhaps it's because they don't really expect their case to go to trial, since so few cases do get tried these days, that the work of compiling witness and exhibit lists, objections, jury voir dire questions and instructions, and the rest of their trial notebooks, seems unnecessary?

Yet I heard a panel of mediators talk about the extensive preparation many of them engage in, sometimes preparing the equivalent of their own trial notebook, and sometimes doing their own independent internet research (a controversial topic). People conducting or participating in settlement negotiations do not always seem aware that proper preparation is just as important to the success of a negotiation as it is in preparing for trial.

Saturday, May 21, 2011


Often the judicial system, despite its flaws, is viewed as at least attempting to operate in a just and logical way, according to rules that we understand and agree upon. The hallmark of an informal dispute resolution system, on the other hand, is that it has no rules. It is seen as emotional as opposed to logical, and is also viewed as somehow cheating justice. When we look more closely at the human beings who use and operate the traditional justice system, we might have to question these stereotypes.

I spent most of the past three days in continuing legal education on mediation, including moderating a panel this morning at an SCMA program on employment mediation. At one of the talks I attended on Thursday, sponsored by the federal court ADR program here in Los Angeles, Bill Eddy, a social worker and attorney-mediator, talked about how to deal with what he terms "high conflict people" in mediation. These include people who might be diagnosed by psychiatrists as suffering from various personality disorders, and they represent a fairly high percentage of the population, perhaps about 20%. This information didn't really surprise me, since I grew up with a psychiatrist father. (He thought pretty much everyone has at least a touch of schizophrenia.) These "high conflict" or difficult people probably represent an even higher percentage of people who are involved in various forms of conflict. It seems to me they also represent a fairly high percentage of the people you find in court. There is much about the court system that can feed the unhealthy tendencies of people who might already have paranoid or histrionic or narcissistic traits, or who might just be described as high strung or domineering. What that means is that a lot of the activity of our supposedly rational and enlightened justice system is driven by and performed in the service of a relatively small number of irrational, even somewhat crazy people. I have probably encountered my share of difficult people, both as clients and as adversaries. Every lawyer has.

Friday, May 13, 2011

Mediation Styles

When I meet people attending a mediation for the first time, I'm always interested in finding out what they expect will happen. Often they don't know much about the process, and sometimes they come in expecting something quite different from what I have in mind. For those people, and even for those who have participated in mediations previously, I sometimes describe various approaches to conducting mediations. I usually have an idea about how I want to proceed, but I try to remain open-minded about what will work. I learned the Pepperdine five stage approach to mediation quite a while back (convening, opening, communicating, negotiating, closing), but that framework doesn't fully answer some much more basic questions that I think about before the start of any mediation, for example, where is everybody going to sit? And, what are we going to talk about? The answers to those questions about format and content vary in every case. I usually use a combination of styles, depending on the needs of the case and the preferences of the parties. I will list them in order of my preference, from my least to most favorite:

1. Mini-Trial

The parties sit on opposite sides of the table, and the mediator sits at the head. (If you really want to approximate a courtroom, you would use something like the set-up below, but that would be highly unusual in a mediation.) Each side takes their turn presenting a summary of their legal and factual positions, and responding to the presentation of the other side. The lawyers do most of the talking. The mediator asks questions and might present the parties with his or her own evaluation of the case.

I usually tell parties up front that I prefer not to conduct the mediation this way. It is too much like court, and I want mediation to be seen as the anti-court. But mediations sometimes devolve into this format anyway, because after all, the parties have been preparing for their day in court, they may be accustomed to and expecting this format, and the mediation might be the best approximation they are going to get of their day in court.

2. Caucus

The parties tell me up front that they do not even want to sit in the same room with the sons of bitches from the other side, not even for a minute. They do not think that will be productive. What they want to do is sit comfortably in their separate rooms, brainstorm among themselves, and explain their view of the case to the mediator. I generally use a conference room for caucuses, but caucuses also lend themselves to a more informal setting, like a reception area. I've even sat with parties in the plaza outside my building, and I encourage parties to take a walk or go out to Starbucks while I am meeting with the other side.

In caucus-style mediation, the mediator's role is first of all to act as a sounding board, and then to coach each side in turn in their negotiations, and to transmit information, demands and offers back and forth between the parties. I usually tell parties seeking this approach at least to try a joint session for as long as it seems to work, because it is more efficient to communicate information directly, than to use the mediator as a conduit to transmit information. But most mediations require at least some use of caucus. The advantages of caucus include confidentiality--people really let their hair down in caucus--as well as comfort. The disadvantages include inefficiency--there tends to be a lot of down time in caucus--as well as the lack of an opportunity to confront and possibly reconcile with the other side.


Instead of sitting on opposite sides and directing their presentations at the mediator, as in the mini-trial model, I try to create the appearance of sitting around a table and brainstorming about how to solve a common problem. Instead of asking lawyers to present their case, I prefer to ask them to predict their chances of prevailing at trial. I try to involve the parties as much as possible, and get them to understand the costs and risks of trial, as well as the advantages of settlement. By the end of the mediation, I explain, the parties are at least going to have a clearer picture of their options, and should in most cases be able to arrive at a more advantageous result through settlement than by continuing to litigate. We also discuss the toll that the dispute is taking on the parties, and try to imagine what life would be like if the dispute could be removed from people's lives.

The object is to arrive at an objective, cost-benefit analysis of both parties' positions and options, so they can make an intelligent, dispassionate decision about how to resolve their dispute. Getting the parties into problem-solving mode, and helping them view their conflict in a more objective way is usually as much as a mediator can hope to achieve. The disadvantage is that we might be ignoring some deeper problems that are really driving the conflict.

4. Encounter Group

I don't have a set-up like the picture below. That would probably be too scary for most of the people attending a mediation session at my office. But I do encourage people, even sitting around a conference table, to open up the discussion a bit. Sometimes I tell mediation participants that it might be best if we don't talk about the case at all. Let's talk about anything else. Talk about your hobbies, your families, how business is going, your hopes, your dreams, what is working, what difficulties you are having, whatever. Then the harder part. Talk about the relationship between the parties, where it started, what it meant, what caused it to break down, whether it can be repaired. I encourage parties to tell the other side things they agree on, things they disagree on, things they appreciate about each other, things they resent about the other. Listen carefully to what the other side is saying. Show that you understand where they are coming from.

When this approach works, it can be magical. The parties are able to lay bare the problems that are really driving their dispute. Once they confront those problems, which is difficult, they often find out that the thing they thought they were fighting about turns out to be relatively easy to solve. Note that we are not doing group therapy when we employ this style, because the goal is still conflict resolution, not curing people's psychological problems. Instead we are conducting mediation using some of the style and techniques of an encounter group. Not everybody wants to go through this experience, and it is not appropriate for all cases, but it can be the most satisfying kind of mediation for all participants.

 As I said, I generally use a combination of all these styles. The trial lawyer in me enjoys hearing attorneys practicing their closing arguments, and trying out their cross-examinations on the other side. In caucuses, where most mediation sessions tend to head, I act as shuttle diplomat, negotiation coach and advocate for each side's position in turn. When I can get the parties into problem-solving mode, it's usually an interesting exercise to try to predict how a case might be viewed by a judge or jury. But the most challenging and rewarding style for me is to adopt the role of group leader, and try to help people understand one another and perhaps repair their broken relationships.

Photos: (1) IAMADRC, Australia; (2) Archzine; (3) focus; (4) mar_nyc 

Monday, May 2, 2011

Negotiating with Terrorists

Mediators often become evangelists for negotiated resolution of conflict, believing mediation or other forms of diplomacy to be superior to all other forms of conflict resolution in all circumstances, and with the potential of solving all problems. We should probably be more humble. We should understand that some conflicts cannot be resolved at all, and some can only be resolved by other means.

President Obama, who most of the time stands for making every effort to achieve consensus, and who even won the Nobel Peace Prize(!), reminded us of that with his announcement last night that he had ordered, and the military had carried out, the killing of Osama Bin Laden. In this case, we were dealing with a character viewed as so outside the norms of civilized society that it would not even have been appropriate to use any sort of legal proceeding against him. We did not face the dilemma of many parties involved in a dispute, of whether to litigate or negotiate. We apparently never even had the intention of bringing Osama Bin Laden before a court. Attorney General Holder told Congress last year: "The reality is that we will be reading Miranda rights to the corpse of Osama bin Laden. He will never appear in an American courtroom." Being unwilling to bring him to court, we certainly had no intention of legitimizing his demands by entering into any sort of negotiations with him.

I happened to have just started reading Robert Mnookin's book Bargaining with the Devil, which opens with a debate over whether just after September 1, 2001, the US should have entered into negotiations with the Taliban, as the Taliban requested. Even though Mnookin is a well-known mediator and advocate of diplomatic solutions to conflict, his answer was "no" in that situation. The time for negotiation was past, in his view, and action was required. Based on the information available at the time, it was morally justifiable to invade Afghanistan if the Taliban government did not accede to our demands. Interestingly, years later our government, and the Afghan government, now seem to have a more receptive attitude toward the possibility of negotiating with Taliban elements, than they did ten years ago. And while we will never negotiate with Bin Laden, we might very well sit down with more respectable people who sympathize with some of his concerns. Whether to negotiate or not might just be a question of timing.

Bruce Willis also reminds us, in this clip from the movie The Fifth Element, that there are many styles of negotiation:

Mediation is not a panacea. It is not appropriate to solve all problems. Neither is the traditional justice system. Neither is war. But all methods have their places, alone or in combination. There is a time, as the Bible says, to every purpose under heaven.