Bob's article -- the tip of a trend -- stresses "winning" the mediation by canny, savvy, sophisticated and sometimes just flat-out tricky negotiating tactics.
Like what? Like squeezing the mediator into a small room at a round table with your team to undermine his authority on your side while at the same time proffering a large rectangular table to the opposition in the hope that the mediator will sit at its head, thereby increasing his influence upon your opponent (assuming, that is, you decide you want the mediator influencing your opponent and aren't concerned that the buddy-buddy atmosphere you're creating won't lead to disclosures you'll later wish you hadn't made).
I know Bob and like him. He's shrewd and frighteningly intelligent. I wouldn't play poker with him or black jack because I know he's capable of actually counting the cards. He probably knows more about negotiation than most litigators of similarly seasoned years because, as a transactional attorney, he surely negotiated and closed more deals in a single year than his adversarial counterparts did in a decade.
And just as some clients choose their litigators to fit the fight (an unreasonable obstreperous fight-ready trial lawyer for case A and a cordial, collegial sort for case B) lawyers will want to choose their mediators to fit the type of work they believe that mediator will do best.
Still, I have reservations about Bob's proposals (which are increasingly being made by many attorneys and mediators) including:
- the benefit that might be lost by continuing to treat your adversary like . . . . well . . . an adversary, rather than as someone with whom a creative business deal might be struck if the attorneys and the mediator would loosen up their control long enough to let the business people do what they do best -- plan for a successful future by drilling down into both parties' commercial interests in an innovative way (cf. Sun Microsystems' Jonathan Schwartz's motto -- Innovate, Don't Litigate); and,
- the likely dreadful set of unanticipated consequences that too often flow from attempting to control an inherently unpredictable and multi-determined process -- one with so much greater depth, texture, nuance and possiblity than any poker game could ever possess.
There is certainly a time for measured responses, poker faces, cozying up to the mediator or letting him (or her!) know who's really the boss. I don't believe, however, that flat-out game-playing and "psyching out" the other side will result in the type of agreements you and your clients are looking for -- not only creative ones, but also durable ones.
Go ahead, let the client take the lead once in awhile. Jim Smith didn't become the head of a division of Lockheed or Joe Richmond the President of Software, Inc. by changing the size of the conference table.
And before abandoning this topic, let me leave you with a recent observation by Schwartz about leadership at Sun Microsystems from an interview entitled The Education of Jonathan Schwartz by Stephen Shankland of CNET News.com.
[a] leader has courage, and courage is the courage to innovate, the courage to collaborate, the courage to act with integrity--because that actually does take some courage--and the courage to do so with pace. You've got to be willing to brook the criticism and the critique from those who don't see the world the way you do. When people look back at who is Sun, they are not looking me; they are looking at 35,000 people.
[As the leader of Sun Microsystems] I want to do a good job of building a leadership culture . . . I don't want there to be one voice [from Sun] to the marketplace, but I want that somewhere in that cacophony [of other Sun voices] to be a very clear and consistent message: here is what we're all about, here is what we can do and here is how we are going to march forward.