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Learning To Negotiate

by Joe Markowitz
November 2010

From Joe Markowitz's Mediation's Place Blog

Joe Markowitz

I had the chance yesterday to lead two groups of first year law students at USC in some mock mediation sessions.  This is truly my idea of fun!  I was impressed by how eager these students were to learn how mediation is done in the real world.  It was also interesting to see how quickly untrained law students adopted many of the attitudes and tactics of experienced attorneys and parties in settlement negotiations.  When it comes to negotiating, we all have a lot of experience from a lifetime of doing it, so in a way we are all experts.  On the other hand, we are also mostly  amateurs in terms of the theory and science of negotiation, and could all probably use more training.  So it's good to see that law schools are finally teaching these techniques.  I can't remember spending even a minute of formal training in negotiation when I went to law school, yet I soon found that it was a major part of practicing law.  Ironically, before mediation became so prevalent, it was probably even more important than it is now to train lawyers in negotiation, since we usually had to settle cases ourselves.  Now lawyers can rely on trained mediators to facilitate negotiations.  And most mediators consider it part of their job to help bad negotiators become better negotiators.

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.

Biography


Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own.  In addition to general commercial litigation, Mr. Markowitz has expertise in  intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation.  Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in  the Central District of California, as well as private mediations.  He has served since 2010 as a board member of the Southern California Mediation Association.   



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Website: www.mediate-la.com/

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