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First published in Trial Talk-December/January - 2005 - Vol. 54 Issue 1 - p31-32.
If you need to approach your mediation from the serious side consider Shel Silverstein is children's classic The Giving Tree (Harper Collins 1964). This is an incredibly powerful short story. Its poignancy cannot fail to touch the reader and the listener. Do your mediation statements have an effective theme or story line like Shel Silverstein does in The Giving Tree? Are your mediations statements concise and clear? Do they touch one's emotions? Dr. Seuss persuades the reader to try eating "green eggs and ham" while Shel Silverstein creates a strong sense of compassion for The Giving Tree. Are you willing to take creative risks in order to be this persuasive?
My point simply stated is lawyers need to be story tellers as much as lawyers. They need to start developing their theme with their complaint and build the theme with their depositions and discovery. They need to go beyond legal writing to produce effective and persuasive mediation statements. Indeed, in this day and age, parties should consider going high-tech by utilizing CD ROMs that, mediation statements, are provided in advance of the mediation. I have seen CD ROMs used powerfully to present fraud cases by juxtaposing deposition excerpts with key documents. Other effective CD ROMs have contained accident reconstructions and day-in-the-life portrayals of the catastrophically injured
Creative mediation requires not only marshalling the law and the facts of the case. It requires applying and utilizing learning from other fields such as psychology and sales. See generally, Joe Epstein, The Powers of Psychodynamics in Shaping Mediation Outcome (hereinafter "Psychodynamics), The Colorado Lawyer, January 2004, Vol. 33, No 1, P45. Risk tolerance, "reactive devaluation," charm, likeability and judgmental over-confidence are just four of the concepts "borrowed" from the fields of psychology and sales that advocates can combine with an effective storyline to have a successful mediation.
In planning for and participating in a mediation, a party must size up his own and his opponent's risk tolerance. Factors to consider include: (1) the party's financial resources, (2) the relevant law, (3) the pertinent facts, (4) aggravating factors, (5) the amount in controversy and (6) the precedential value of the case. As a mediator and as an advocate, I have found that the number one persuasive factor relating to negotiation is fear. Fear may be of the unknown facts or it may be the fear of losing. Id. Knowing how to effectively use fear and its flipside - power - at a mediation requires creative planning. Id. The seed of fear may be planted in pleadings, in depositions and in mediations. Indeed, you want to determine how the seed of fear can bear fruit at the mediation.
Relatedly Relatedly parties should consider the concept of "reactive devaluation" in creatively planning for mediation ." Id. "Reactive devaluation" is the tendency to devalue proposals or arguments made by an adversary. Thus, if you want to try to persuade an opponent about an issue you might consider having a mediator, who is perceived as a more credible source, make your point to your opponent. Similarly, if you want an opponent to say yes to something you are proposing, you might do well to remember that some people prefer to say yes to individuals they know and like. Id. citing Robert Cialdini.
Parties would do well to consider, too, the concept of "judgmental overconfidence." That is, parties should note that they have a tendency to over evaluate their case and overrate their own arguments. That is, "[w]hat you see depends in part on where you stand, who you are and what you've seen before." Id. citing Robert Mnookin. Thus, we filter facts to fit our pre-conceptions and our pre-dispositions. You can get a reality check with a pre-mediation focus group or by "testing" your position with the mediator in caucus. In the right case and at the right moment you may want to share pre-mediation focus group findings with your opponent.
In summary, advocates should consider combining the simple, clear, and concise art of children's stories with the sophisticated insight of experts in persuasion and sales. Remember, after a book's worth of pestering by Sam to eat green eggs and ham the Seuss character finally tells Sam:
If you let me be
I will try them
You will see.
I like Green Eggs and Ham!
I do! I like them, Sam - I - am!
And I would eat them in a boat.
And I would eat them with a goat....
I do so like
Green Eggs and Ham!
Sam - I - Am!
Dr. Seuss, Green Eggs and Ham, (Beginner Books), P54-62.
Be catchy, be creative, be concise and you and your client could walk away with a very satisfying result in your next mediation.
Joe Epstein received his law degree from New York University School of Law in 1969, where he served as a student editor of NYU's Annual Survey of American Law. He received his mediation training at CDR Associates, Harvard University's School of Public Health, Pepperdine University's School of Law and Chapman University.
Creative, insightful, intuitive and dynamic, Joe Epstein brings over 30 years of experience, high energy and a proactive approach to mediation. Having heard over 2500 ADR cases, Joe is regularly asked to handle complex ADR cases requiring his unique communication skills, his analytical insight and intuitive style.
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