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Elements of an Unsuccessful Negotiation Strategy

by Phyllis Pollack
June 2013

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack
Negotiation strategy and legal malpractice claims have much in common. This point struck me as I read an article in the California state e-bar journal dated May 2, 2013, listing ten items that can lead to a legal malpractice claim. Looking through them, I realized that many of them will also lead to an unsuccessful negotiation, if not poor negotiation strategy.

The ten items include; "...Missing filing deadlines; ...Failing to recognize substance abuse or stress; ...Poor client communication;... Ineffective client screening; ...Failing to understand the law; ...Conflicts of interest;... Inappropriate involvement with a client, such as becoming an investor or creditor;... Failing to document legal work; ...Suing a client to collect a fee; [and]... Failing to identify someone as a client" (http://www.calbarjournal.com/May2013/TopHeadlines/TH2.aspx)

Missing any sort of deadline in a lawsuit will not start the mediation off well. Many times I have had counsel complain to me that it is difficult for her to negotiate on behalf of her client because the other party has not responded to discovery and thus, she does not have the information needed to counsel her client on settlement. Generally, people need information with which to make decisions; without it, they are extremely uncomfortable about settling.

Substance abuse or stress- either in a party or in counsel- will also lead to a bad outcome in negotiations. While I have not knowingly witnessed someone trying to negotiate while under the influence, I have witnessed parties attempting to do so while under stress. As a myriad of studies have indicated, stress blocks one's ability to think rationally; instead, it evokes the "fight or flight" response which is not at all helpful in trying to resolve an issue, peacefully.

Poor client communications is one of the top reasons why matters do not resolve. A good negotiator will prepare for the mediation beforehand by discussing the strengths and weaknesses of the matter with her client, preparing her client for all of the different possible outcomes, and providing the necessary reality check. Poor client communications leads to "winging it" at mediation, which, as we all know, is not a good thing and does not lead to good outcomes. It is simply not a good negotiation strategy.

The next point -ineffective client screening- is an outgrowth of poor client communications. If one does not talk with her client extensively, then one does not really get to know her client, what personality traits may be at issue and what "hot buttons" the client may have. Again, without this knowledge- one is "winging it" at the mediation and emotions may override rationality such that someone storms out of the mediation.

The next two- conflicts of interest and inappropriate involvement with the client - are closely related. The most obvious conflict that I often see- has to do with attorneys' fees. Typically, plaintiff's counsel has taken the matter on a contingency or on the condition that the defendant pays plaintiff's attorneys' fees. Thus, at mediation, the attorneys' fees may impede the ability to settle the case. At times, the defendant has offered enough money to satisfy plaintiff's demands but not enough to pay counsel's fees. Settling the matter then becomes difficult and problematic.

Similarly, the attorney may have some other interest in the case so that she cannot be totally objective at mediation; while she is looking out for her client, she is also looking out for her own interests. It may end up that while the client is willing to settle, the attorney is not, out of her own interests not being satisfied.

The last one on the list is failing to identify someone as a client. This reminds me of not having all of the necessary parties at mediation. For example, in my lemon law mediations, the driver of the vehicle may be present but not the registered owner, or vice versa. I had a mediation the other day in which the surety (believing it had settled with plaintiff) was absent from the mediation, only to be brought back in by telephone since its participation was still crucial to the overall settlement. Obviously, it is imperative to figure out whose presence at mediation is crucial to its success and to make sure that the crucial person is present.

So... just as there are many traps for possible legal malpractice claims, these same traps can dictate the success or failure of mediation.

... Just something to think about.

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



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