Canadian Lawyer Michael Webster asks about Jay Welsh's comment (see videos) that "in a mediation the plaintiff has to settle for far less than they thought and the the defendant has to pay far more than they ever thought."
"So," asks Webster, "this would be the lose/lose theory of mediation?"
I know when Michael's being sarcastic but decided to respond seriously by noting that Jay himself used the phrase "lose-lose."
I went on to say that the most valuable service I can often perform is to "break through confirmation and other biases/ ** that have interfered with case analysis and caused impasse."
Michael's reply was important:
When the issues have been crystallized into legal ones so well, you are in a lose/lose situation. The manager's dilemma then becomes counsel's dilemma: how do I manage to convince my client to lose more than I ever predicted and still maintain my own credibility.
Though I'm a little tempted to be flip ("this is why they pay me the big bucks") Michael's question nails one of the most difficult issue attorneys must deal with in settlement negotiations. It is certainly one of the most delicate tasks a mediator is called upon to perform.
First Let's Re-Visit Interest-Based vs. Distributive Settlement Negotiations, Asking Ourselves Whether There's Really Such a Thing as a "Pure" Money Case
My husband, with 35-years of complex commercial litigation practice under his belt is my attorney-mediator-communication weather-vane. So I asked him over pancakes this morning, "Honey, do you think there's any such thing as a 'pure' money case?"
Two months ago, he would have said "yes," and given me that "you've changed too much" look. I don't know why he said "no" this morning. But here was the gist of his response.
"Every case involves someone's interests, whether it's the GC or a company executive, or even a 'little guy' down the management chain who made a decision that impacted the course of the dispute four or five years ago. So of course there are innumerable non-monetary concerns that impact why the case is settled and when and for how much. Then again, maybe I've just been living with you for too long."
So let me first say that there is no such thing as a non-interest based negotiation. There are only negotiations in which we ignore the fact that party interests are at play.
This is one of those nature/nurture mind/body duality questions. Yes, it's "just" about money. And yes, the money represents party interests. It's nature and nurture, mind and body, budgetary constraints and party goals and relationships.
Here's another thing. Although the disputing parties may never again be in relationship with one another, the people on each side of the conflict-fence are not only in daily contact, their well-being, livelihoods, self-respect, reputation, promotions, demotions, and salaries depend upon their on-going relationships with one another, which are all in play in every negotiation of every commercial dispute.
And one more thing. Conflict cannot arise in the absence of a relationship. Even though the disputing parties may never again be in relationship, they're sure the heck in relationship now. And the relationship of the disputing parties from the moment conflict arises to the minute it settles has everything to do with its resolution.
There is no "zero-sum" game outside the realm of the virtual or the hypothetical. There is no "rational" man. People -- messy, conflicted, emotion- and interest-driven people -- are the necessary pre-requisite to conflict. How we deal with apparent lose-lose conflicts, "manage" party expectations and deliver bad news in a way our clients can hear it in the next post. Immediately hereafter.
**/ "Confirmation bias" refers to our "unwitting selectivity in the acquisition and use of evidence" in ways that are "partial to existing beliefs, expectations, or a hypothesis in hand." See Confirmation Bias: A Ubiquitous Phenomenon in Many Guises by Raymond S. Nickerson of Tufts University.