Sun Tzu’s Tips on Effective Mediation

Sun Tzu wrote a book “The Art of War[2] two and a half thousand years ago. James Clavell, an esteemed writer has
expressed the opinion that the war in Vietnam could not have happened, the war
in Korea not lost and the Bay of Pigs avoided if our political and military
leaders had studied this book. We
recommend this book, written by a Chinese philosopher/general, to you with more
modest expectations. We believe that
the “The Art of War” will serve you as a helpful guide to
successful mediation. We have chosen the format of selecting quotations from
Sun Tzu’s “The Art of War” and added some brief commentary to
put his cogent and insightful observations into the modern context of effective
mediation. It is our belief that it makes sense to apply the General’s revered
philosophy to the mediation process. After all, in order to accomplish
effective dispute resolution, people in conflict must prepare not only to
cooperate in mediation but also to contest in litigation at the very same time.[3]
Disputants must be successful advocates in order to give others a reason to
engage in principled negotiation. In our lexicon, principled
negotiation
occurs when parties engage in a fair and open discussion of the
facts and applicable law. Ideally, principled negotiations enables
closure and provides the opportunity for the tapping of transformative
opportunities and the addressing of underlying interests.

Objective of Mediation:

The true objective of war is peace.” Sun Tzu (Page 7)

Litigators are trained warriors. Effective warriors and
litgators must equally be prepared `for battle and be ready to fight
ferociously or litigate vigorously. Such preparation may cause the opponent to
sue for peace. Within the context of civil litigation, this means thorough case
preparation, thoughtful discovery and effective depositions are key ingredients
for success. Style and reputation for fearlessness are also important
ingredients in the pre-mediation process. During the mediation, the subtle
skill of the effective peacemaker takes precedence over the skills of the
warrior. In order to achieve the full promise of mediation, the effective
warrior must devise a strategy that reflects the type of case she is handling,
the wishes and needs of the client, and the likely goals, objectives and
strategy of her opponent.

Our mediation experience indicates that many attorneys have
a tendency, due to their experience and training and the expectations of their
clients, to engage in distributive negotiation during mediation. This
technique is often thought of as drawing a line in the sand and standing firm,
going for the win and avoiding the loss at all costs.4
The distributive negotiation style is most prominently evidenced when it
is unlikely that the parties will have any ongoing relationship following
mediation (e.g. personal injury cases). Interest-based negotiations often
occur when there is a continuing relationship (e.g. joint ventures). Interest-based
mediation
often occurs its focus is on the needs of the participants that
underlie the conflict.5 Transformative
mediation
may be used when parties want to make a fundamental change in an
on-going relationship (e.g. employment cases). In the transformative
approach
the emphasis is on fostering the empowerment and the recognition
of the participants.6 Quite simply, the
mediator facilitates the opportunities for growth.7
In any event, it is often useful to consider whether there is any “currency”
that exists in addition to money that may be important to the parties. In a
wrongful death case it may be important that the practices and procedure that
led to the death be changed and that the loss be acknowledged in some
meaningful and special way. As one example of the power of acknowledgment we
recall a particularly intense medical malpractice case where the mediator, the
patient and the physician met alone. The physician relayed a sincere apology to
the patient and the patient expressed forgiveness. The impasse to settlement
was dissolved. We thus encourage you to break the mold, go outside the box, and
be as creative in mediation as you would be in trial.

Preparation before the Mediation:

“. . . If you
know the enemy and know yourself, your victory will not stand in doubt, if you
know Heaven and know Earth, you may make your victory complete.
Sun Tzu (Page 55)

“He will win who, prepared himself, waits to take the
enemy unprepared.”
Sun Tzu (Page
17)

“He who exercises no forethought but makes light of his
opponents is sure to be captured by them.”
Sun Tzu (Page 41)

“If you know the enemy and know yourself you need not
fear the results of a hundred battles.”

Sun Tzu (Page 18)

Assuming you have been persistent in your discovery,
thorough in your preparation you will know your “enemy” and “yourself”. This
knowledge should enable “victory”. The power of knowledge, the power of
information, the power stemming from the exercise of advocacy skills all create
respect for and appreciation of your case. Never underestimate your opponent
and anticipate, as best you can, her moves before and at the mediation table.8

The insightful attorney role-plays with her client,
anticipates the mediation moves of her opponent and considers the mediator’s
style and techniques beforehand. This will enable greater flexibility and
maneuverability during the mediation. If the clever advocate would not “wing
it” at trial, why risk “winging it” at a mediation? Thorough knowledge of the
facts of your case and the law are paramount in the preparation for mediation.
We suggest that you try to go a step further and attempt to analyze your
client’s needs, interests and conflict resolution style. Additionally, analyze
your own needs, interests and conflict resolution style and those of the
opposing party and the opposing attorney. Preparation, anticipation and
creativity are undoubtedly the keys to successful mediations. If you have
conducted sufficient discovery to know the forces lined up against you, if your
have carefully taken stock of your own troops (witnesses) and supplies
(documentary evidence), and if you have carefully considered how to align your
side during mediation you will be ready to make “peace” at the mediation.

Discovery

“Spies are a most important element in war, because upon
them depends an army’s ability to move.”

Sun Tzu (Page 82)

“ . . . to remain in ignorance
of the enemy’s condition, simply because one grudges the outlay of a hundred
ounces of silver in honors and emoluments, is the height of inhumanity.” Sun Tzu
(Page 77 )

Discovery
cannot be ignored. It is essential to “scout” behind “enemy” lines before the
mediation in order to be properly prepared. It is not enough to know your own
“troop” strength and your own cache of ammunition. In order to be an effective
at mediation you need to conduct sufficient discovery to know the strengths and
weaknesses of your opponent. If your probing has gained you insight and created
some fear and concern in the “enemy” camp you are all the more ready for making
“peace” at the mediation. For example, in the typical medical malpractice case
it generally does not make sense to mediate unless the plaintiff, the defendant
and the key experts have been deposed. In personal injury cases liability must
be established, the medical situation clarified and the “specials” (medical
bills) verified beforehand if you want a productive mediation.

Timing of Mediation:

“In war, then, let your great object be victory, not
lengthy campaigns.”
Sun Tzu (Page
14)

Effective mediation requires that sufficient discovery or
scouting be done beforehand. Too much bloodletting may entrench one or both
sides and may make “suing for peace” too painful. Approach the mediation with a
peace mission in mind while the parties are still communicating and the
opportunity for the inclusion of more creative options in the final “peace
treaty” is still viable. In some employment cases pre-filing mediation with
limited or informal discovery without position hardening publicity may allow
for creative resolutions that are not available later in the process.

Tactics at the Mediation:

“To fight and conquer in all your battles is not supreme
excellence; supreme excellence consists in breaking the enemy’s resistance
without fighting.”
Sun Tzu (Page
15)

“The skillful leader subdues the enemy’s troops without
any fighting.”
Sun Tzu (Page 16)

“For you should not press a desperate foe to hard.” Sun Tzu (Page 35)

“Ponder and deliberate before you make a move.” Sun Tzu (Page 32)

“Concentrate your energy and hoard your strength.” Sun Tzu (Page 60)

According to Sun Tzu, if you have the superior forces why
force a desperate opponent into battle. Why not give your “ worthy” opponent
the opportunity to leave the battlefield gracefully? Your client may have to
deal with this person again and you may litigate against opposing counsel
again. Just as some generals make hasty ill considered moves in battle, Sun Tzu
would urge that the thoughtful negotiator ponder and carefully contemplate her
moves.9 In negotiating with the other side too
many negotiators lose credibility and dissipate their strength when they argue
everything rather then concentrate on their truly strong issues. With reduced
credibility they lose strength and come to the final battle weakened. Husband
your strength and acknowledge your weaknesses if you want to be effective in
your mediations. Just as you would “pull – the – punch” in voir dire or opening
statement consider doing the same approach in mediation. Consider also, the
possibility of embracing your “enemy”. In the medical malpractice case noted
previously the physician and the patient actually physically embraced. This
honest expression of emotions and feelings ended, for all practical purposes,
the fighting and the case settled.

Strategy at the Mediation:

“The general who wins a battle makes many calculations in
his temple before the battle is fought.”

Sun Tzu (Page 11)

“To secure ourselves against defeat lies in our own
hands, but the opportunity of defeating the enemy is provided by the enemy
himself.”
Sun Tzu (Page 19)

“Force him to reveal himself, so as to find out his
vulnerable spots. Carefully compare the
opposing army with your own, so that you may know where strength is
superabundant and where it is deficient.”

Sun Tzu (Page 28)

Successful mediation requires the exercise of patience,
considered moves and the avoidance of intemperate action. The secret to success
at mediation invariably lies in the lost art of listening. Listen to the other
side.10 Listen for what is not said as well as
what is said. Listen for how things are said. Watch your opponent. Probe with
open-ended questions. Use thoughtful questions and careful listening rather
than the blowtorch as your key tools in mediation.

Consider the use of negotiation jujitsu and the gambit of
briar rabbit.11 Question the mediator in
order to gather insight and to test your own observations. To some degree the
mediator serves as a scout and reality check for all parties—use this
individual effectively.

Conclusion:

“In peace prepare for war, in war prepare for peace. The art of war is of vital importance to the
state. It is a matter of life and
death, a road to safety or to ruin.
Hence under no circumstances can it be neglected. . . .”
Sun Tzu (Page 83)

If you are careful in your case selection, if you are
clever, concise and concentrated in your discovery and if you have developed a
reputation for advocacy, a mediator can help you win without war. On the other hand, if you have not chosen a
strong case, if you have failed to prepare adequately, a mediator cannot
“balance-the-power” and present you a “win”. Successful mediations are achieved only with
preparation and skillful negotiation. The mediator must be the creative
facilitator; the advocate must be the skillful and flexible negotiator.



© Joe Epstein – All Rights Reserved 10-25-00

[1] Joe Epstein, Esq. is a mediator with
Conflict Resolution Services, Inc. (“CRS”). Eileen Siskel, M.P.H. is a graduate student at the University of
Denver and is interning with CRS. Steve
Berkowitz, Esq. has assisted in the preparation of this article.

[2] The Art of War – Sun Tzu (Edited by
James Clavell) 1983 (hereinafter referred to as “Sun Tzu”).

[3] See, Bernard Meyer, The Dynamics
of Conflict Resolution
, (Jossey-Bass 2000), p 61 (hereinafter
“Meyer”).

4 See,
Leonard J Marcus, et al, Renegotiating Health Care, (Jossey-Bass 1995),
p 418.

5 See generally, Meyer at p17.

6 See, Robert A. Bush and Joseph P.
Folger, The Promise of Mediation,
(Jossey-Bass 1994), p 12.

7 Id.

8 See
generally,
Howard Raiffa, The Art and Science of Negotiation (1982)

9 See
generally,
Tom Arnold, Twenty Common Errors in Mediation Advocacy, ADR
Today, Spring 1995.

10 Id.

11 Charles B.
Craver, Negotiation Techniques: How to keep Br’er Rabbit Out of the Brier
Patch
, Trial (June 1988) p 72.

                        author
                        author

Joe Epstein

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… MORE >

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