Yes, Virginia, lawyers do "win" mediated settlement negotiations every work day. They do so by:
- their reputation for success at trial;
- their ability to choose the right moment to first discuss settlement;
- their ability to "control" their team and their client ("control" being a legal term for good client relations arising from top notch client communication skills);
- their negotiation skill set - both in terms of long-term strategy and "at the table" tactics;
- their persuasive skill set - both with opposing counsel and with the mediator;
- their ability to conduct a risk-benefit analysis that approximates the true likelihood of their probable success at trial;
- their determination to make aggressive but reasonable first offers;
- their possession of and willingness to stick to a set of flexible "bottom lines" that give them sufficient room to "horse trade" and "hang the meat low enough for the dog to smell it;
- their ability to bring the right people to the table at the right time; and,
- their ability to walk away without dramatics if the other side is unwilling to negotiate in the realm of reality.
Some of these skills are in all litigators' arsenals. Where most litigators are the weakest is in the negotiation of settlements. I know it not only because it was my greatest area of weakness ("I'm paid to win not to settle") but because I see it evidenced in mediation when attorneys bargain half the day away in the useless strato- and nano-spheres.
Here are two new resources you should have at hand every working day. "Having blog resources at hand," by the way, means having a google or other news reader to send you RSS feeds.
Decision Tree Analysis - the Decision Tree Analysis Blog by PaperChace. There's a ten-day free trial of PaperChace's decision tree analysis software for mediators, a free trial I'll take advantage of once the $^%@# book is finished (any day now, really). Laywers love numbers in the way only people who don't understand them can. I've had cases settle promptly as soon as everyone has put themselves to the task of making numeric estimates of their chances of success on the merits at any given stage of the litigation. For making the uncertain certain and depressing overly optimistic client expectations there's nothing quite like numbers. Do check it out.
There's another mediation blog to read as well, but not simply "yet another" blog by yet another mediator. This is Lee Jay Berman, one of the best and busiest mediators in town, the teacher of thousands in Pepperdine's internationally known and respected "Mediating the Litigated Case" and President of his own mediation think-tank and training station - the American Institute of Mediation.
The blog, Eye on Conflict, will deliver to you free of charge the wisdom, education and training you'd otherwise pay thousands of dollars for. Listen, I spent two full years at the Straus Institute earning my LL.M in dispute resolution and every time I talk to Lee Jay he tells me something that improves my ability to help lawyers negotiate settlement 100%. Today Lee Jay mourns the passing of a giant in our field - Richard Millen. As you read Lee Jay's tribute, you come to understand just how deeply embedded he and his vision are in mediation theory and practice in Southern California.
Put these two dynamite resources in your news reader and be as good a settlement negotiator as you are a litigator and trial attorney.