Plan to Make a Plan for Mediated Negotiations

Plan to Make a Plan for Mediated Negotiations

 

Although it’s important in any negotiation to imagine the negotiation from the other side’s perspective, it isn’t always easy, especially in competitive environments like litigation. After sometimes years of work and resources have been invested in planning for an eventual courtroom showdown, the process of finding common ground for settlement requires thinking a little differently – more collaboratively – about the dispute. 

Thinking a little more collaboratively doesn’t have to mean thinking less competitively, however. It simply means thinking about what will capture and keep the attention of the target audience at mediation – the other party – and motivate it to decide to settle. This exercise invites each party to do what many veteran litigators often do naturally anyways, which is to consider the conflict and possible remedies from the other side’s perspective.

To do this, and to make the most of a mediated negotiation, parties should plan to prepare a mediation plan well-before the day of the mediation session. The plan will help guide the analysis and many decisions that will be made during the mediation, and should raise the prospects of reaching resolution.

To help jump-start the exercise, the following are a few things to consider.

First, be mindful that a series of rejections will always precede a mediated settlement. So plan for them. In other words, pay homage to the process by anticipating several rounds of negotiations. Know that it won’t be any easier to convince the other side to accept your point-of-view or proposal than it will be for them to convince you to accept theirs. 

No doubt mediated negotiations are not easy negotiations, even with a plan. But parties that prepare for a difficult negotiation are less likely to let emotional reactions – their own or the other side’s – interfere with, derail, or diminish progress made during negotiations. 

Instead, those parties recognize and appreciate the difference between influencing the other party and controlling it. They know that nothing any party does controls what the other party will do. However, they also know that parties can – and do – influence each other’s proposals in a number of different ways. For example, every mediated negotiation involves the theory of reciprocity – giving something and getting something in return. But reciprocity is not the only way parties influence each other. For example, showing empathy and respect in the opening joint session are but just a couple of other ways parties influence each other. But no matter how much one side influences another, neither is able to control the other.

This is why it is important to have a plan. Proper preparation prevents poor performance, it has been said. But having a plan is more than just knowing what your top or bottom dollar is.

Having a plan means having a firm understanding of the strengths and weaknesses of both sides of the case on key claims and defenses, knowing what evidence and testimony is likely to be admitted in support or defense of each, and knowing how to present this information during the mediation – either during the joint opening session or private caucus – to influence the negotiation process.

Having a plan also means being prepared to realistically discuss what the tendencies of the judge or arbitrator(s) will be for managing the trial or final hearing and knowing the general demographics and tendencies of the prospective jury pool in the venue. And, if you are a plaintiff wanting to collect a judgment (if awarded), being prepared to candidly discuss collection efforts, including taking into account the financial ability of the other party to pay a judgment, if rendered.

It’s not enough just to have a plan, however. Before the mediation give some thought to how to use the plan during the mediation session. Think reasonably and strategically about the issues and decisions that will have to be made, and how the plan will help make those decisions.

With the plan, go into the mediation knowing that when the session ends, an informed judgment and appreciation of the various and complex risks involved impacted the outcome.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

Going Back to the Office: Leave the Mediator Out of It

Going Back to the Office: Leave the Mediator Out of It

After two years of remote work, a number of companies and firms are asking employees to return to their offices. Some are happy and some are not-so-happy about this transition. Inevitably, there will be a re-adjustment period … again.

Over the past 2 years, most of us have mostly communicated – if not exclusively communicated – with our colleagues and clients behind keyboards and in front of computer screens. Returning to work in the same physical workspace will certainly be a bigger adjustment for some than for others. With a number of people changing jobs or starting their careers there are sure to be some new faces roaming the halls. In many cases, the physical workspaces themselves have changed too to adapt to physical spacing concerns in post-COVID working arrangements.

When two-or-more humans interact, there is always a chance for conflict. But as professionals and team players, most office disagreements can be addressed with just a little common sense, courtesy, and – perhaps – a well-placed bit of humor and humanity.

The following are just a few suggestions – reminders, if you will – to help you deal with potential missteps as the transition and commute back to the office continues.

Step One:    Step away from the keyboard and videocamera.

This tip may seem obvious but even before COVID many of us may have relied too much on our keyboards. This probably won’t come as a surprise, but studies show that conflict can be fueled by over-reliance and usage of communication technologies. As an antidote, the obvious thing to do is spend some time meeting in person and talking through the pressures people are facing in order to build rapport, trust, and a team.

But don’t take my word for it, in his book, The Speed of Trust: The One Thing That Changes Everything, Stephen Covey says that “Research shows that face-to-face communication regarding attitudes and feelings is 7 percent what people say, 39 percent how they say it, and 55 percent body language.” It’s harder (sometimes impossible) to read body language through a computer screen.

So now that you’re back in the office, grab a couple of cups of coffee, walk down the hallway, and spend a few minutes in front of your colleague’s desk to catch-up or talk about that thing he (or you) said or did that you can’t get off your mind.

Step Two:       Seek to understand the concern from the other person’s perspective first.

If you’re needing to talk about something sensitive or possibly controversial, approach the conversation with the goal of seeking to understand before wanting to be understood. While it’s doubtful an office conflict will grow into a legal dispute, the story Covey tells about when he first became CEO of the Covey Leadership Center illustrates the power and importance of listening first.

According to Covey, he took the helm of the Center while it was involved in eight legal disputes that had dragged on for too long. Those legal disputes were consuming “enormous time and energy, and [he] was frustrated because [he] felt [they] should be focusing [their] efforts elsewhere.” So he set a goal to resolve them all within two months, and met it in all but one instance.

His ”basic approach was to listen to the other parties first.” (emphasis supplied). By engaging the other party in a conversation, Covey gathered information about the conflict and demonstrated a desire to understand their perspective. By simply listening, he “created the openness, trust, and understanding needed to come up with solutions” that worked for everyone.

A powerful thing happens when you talk through difficult issues with someone and listen well. You open the door for each of you to better understand the other, especially if you really care and show an interest in wanting to build trust and a team.

Step Three:     Approach the conversation with an open-mind and curiosity.

If you are about to engage in a difficult conversation, it’s possible there will be a difference of perspective or opinion about whatever it is that will be the topic of conversation. And that’s ok.

Embrace the difference and be curious about it. Ask open ended questions. Or, even better, don’t ask a question at all. Invite the other person to share her thoughts through the simple phrase: “Tell me your perspective on ___.” or “Tell me more about that.”

To put yourself into the right mindset for this conversation, you might try thinking like a scientist, the approach recommended by Occupational Behaviorist Adam Grant. Scientists are instinctively curious and, because they must be intellectually honest in their experiments, they don’t approach their work to achieve a particular outcome. They approach each experiment curiously – to learn something – not necessarily to influence.

Step Four:       Offer an apology, when appropriate.

We are all human. We all make mistakes.

Sometimes the right thing to do is to recognize our humanity and our mistakes and offer a friend or co-worker a sincere apology.

When an apology is appropriate, don’t make the mistake of offering a justification or saying too much. Be clear, genuine, and sincere.

In his book What Got You Here Won’t Get You There, corporate executive coach Marshall Goldsmith provides an instruction manual. Here’s how he says to do it:

              You say: “I’m sorry.”

To signal that you want to let go of the past and focus on a better future, you add, “I’ll try to do better in the future.”

And then be quiet. Don’t explain, complain, qualify, or dilute the power and authenticity of the moment.

Step Five:          Try to find ways to connect on a human level.   

How you approach this last point is optional. It is good to remember that everyone has a responsibility to the larger organization’s success and should take advantage of opportunities to connect on a human level. One way to do this is with humor, but there are other ways.

A little levity, in the right situation, can do wonders for reducing friction in a relationship and opening lines of communication. In the appropriate situation and with the right person, consider its usefulness.

For example, in addition to bringing a couple of cups of coffee, or perhaps, in the alternative, carry an inflatable bat (with smiley faces on it) as a prop. When the other person sees you carrying it, his curiosity will be triggered. He’ll wonder “why the heck you’re carrying that thing around the office.” At that point, you’ve got his attention. He’ll listen to you.

At the right time, again when appropriate, you can satisfy his curiosity in an infinite number of ways. Perhaps, you tell him you brought it with you as a reminder of something else you wanted to do or say (e.g., to invite him to a Houston Astros baseball game or calendar your kid’s t-ball game). Or jokingly tell him it was part of your “back-up plan.” Acknowledge that you don’t like these kinds of conversations and, if it didn’t go well, you were ready to offer him the option of continuing the conflict (not a real option) or an afternoon at the batting cages.  

If you’re a woman and think this last tip just won’t work for you, or maybe want some suggestions on how to incorporate levity into your professional world without compromising your brand, read What Mona Lisa Knew: A Woman’s Guide to Getting Ahead in Business by Lightening Up. Management psychologist Dr. Barbara Mackoff offers a “bold new strategy for less stress and more success on the job.”

Okay, that’s it. You got this. You don’t need me – or any other mediator – for this one.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

5 Reasons Not To Skip The Opening Joint Session

5 Reasons Not To Skip The Opening Joint Session

There are two ways to begin a mediation session: with an opening joint session and without one. Over the years, the once-prevailing approach to begin with a joint session seems to have lost its appeal. Often a joint session is viewed as unnecessary because the parties already know each other’s positions, or is considered not to be a good use of time, or there’s a concern meeting jointly could hinder the negotiations.

While all of these may be true in any particular case, most would agree that it is rare for one approach to be right in all circumstances. This article is not intended to debate which approach is better in any particular case. Instead it will simply highlight five ways in which an opening joint session can improve the mediation process. In other words, below are five possible reasons to consider for not skipping it.

Helps the mediator help the parties by establishing her role and authority as an impartial neutral

Every mediator opens a mediation with a few words of encouragement and, perhaps, some housekeeping about what to expect process-wise. While mediators can provide this information to each party separately, there are benefits to talking with all of parties at the same time.

When everyone hears the same information in the same tone of voice in the same order at the same time, everyone sees the mediator interacting with everyone else neutrally. By openly talking with all of the parties and their lawyers together, the parties are able to see the mediator as someone they can trust as a neutral collaborator. And for the mediator, it’s her chance to deliver the impression that this negotiation is not going to be like any other and, thus, establish her role in guiding the process.

In a world where first impressions matter, the mediator’s opening interactions with the parties set the stage for what follows. A joint session is an opportunity for the selected mediator to reassure all of the parties that their time in mediation is being well-spent, whether or not an agreement is reached. 

Reveals who the decision-makers are “in the other room”  

One of the most important factors in mediating a dispute is knowing that the right decision-makers are available and engaged in the process. Dwight Golann, in his book “Sharing A Mediator’s Power: Effective Advocacy in Settlement,” suggests that “[h]aving capable decisions makers is probably even more important than obtaining the best possible neutral.” In those instances in which a person important to the success of the negotiation is not likely to participate, Golann recommends asking the mediator to secure her participation.

During the joint session all of the decision-makers and their counsel actually see each other before the negotiation begins. A lot can be learned about someone simply by being in their presence. Indeed, one of the first rules of persuasion is to  “know your audience,” and one way to do that is to meet with it.

Affords an opportunity to directly persuade through storytelling

“If you need to make an argument about an issue about which you feel very strongly, don’t use rhetoric. Tell a story instead,” says John Baldoni, in a 2011 Harvard Business Review article Using Stories to Persuade.

As lawyers, we are trained to use logos (argument by logic) to persuade dispassionate audiences, like judges. But, in mediation, there are no judges and the audience may not be dispassionate. The goal in mediation is not to win over your opponent, it is to win-over your opponent. After months (sometimes years) of competitive legal jousting, for at least one day, the parties confidentially discuss what common ground, if any, there may be to end their fight. With this goal in mind, logos alone may not be the most effective means of persuasion.

In his book Thank You For Arguing, Jay Heinrichs explains how logos and pathos (argument by emotion) combined help to win-over an audience with greater ease. Together, logos and pathos appeal to both the brain and the heart of a person, respectively. Heinrich explains that “[w]hile our brain tries to sort the facts … our heart makes us want to do something about” them. 

In mediation, the joint session presents an opportunity for disputants to use storytelling – logos and pathos – to start the negotiation. Because stories are persuasive tools, the idea is not to reduce the level of advocacy Instead, a well-told story expresses a less combative approach to the day’s agenda while conveying a contrasting point of view. It’s an opportunity to convey – directly and persuasively – to an attentive audience (the decision-makers and the mediator) a very valuable message” either: ‘This is not going to be a cake-walk for anybody‘” or positional weaknesses that reveal “just how outgunned” a party is.

Having worked closely with their own counsel in preparing for mediation, the decision-makers come to mediation knowing their theory of the case, familiar with the other side’s theory, and armed with their counsel’s opinions as to the strengths and weaknesses of the competing positions. But they may not have heard the other side’s story told the way the other side’s lawyer will tell it. In other words, they may not have heard the story in the same way they will hear it when spoken from a new voice, and perhaps told more – or even – less persuasively.

If there is a concern that the other side might use a joint session to grandstand, instead of persuade, it is helpful to prepare the parties ahead of the mediation session. Talk with them about how to interpret such behavior and remind them that they can control only their side of the negotiation. Coach them on the importance of not reacting openly or being offended. Instead, prepare them to listen closely and accept the presentation as simply another piece of information. The more information the parties have about who is “in the other room” during a mediation, the better able they are to assess responses, options, and offers in the subsequent negotiations.

Reassures the parties by serving as a substitute for “their day in court”

“Mediation is not a court, but the process can give parties a better experience of being heard than a trial,” according to Golann.

Even though mediations are less formal than trial, a joint session makes the process feel a little more formal. It allows the parties to see and hear their lawyers advocate for them, and the other side’s lawyer represent the opposing view, in front of a neutral third-party – the mediator. Although a mediator makes no decisions, by experiencing this kind of advocacy parties are assured that they are being well-represented by counsel and heard by an impartial stranger. With that assurance, the parties are in a position to spend the day discussing ways to control the future, even if it is still hard to put the past in the rearview mirror.

Opens direct lines of communication between the parties

Once a conflict escalates to a point where litigation looms, communication between the parties often starts to deteriorate or even evaporate. As part of a sound litigation strategy, months (even years) can pass during which a party has relied solely on counsel to speak for them, creating distance between the underlying stakeholders in the dispute.

The confidentiality of mediation presents a unique opportunity for parties to share directly with each other. For individuals, it is an opportunity to talk about how the conflict has affected his/her life, business, and relationships. For businesses, it may be an opportunity to signal that there are more ways than one to resolve the conflict and the benefits to keeping an open-mind about the negotiation ahead.

In those cases in which a party wishes to speak, it can be impactful. In certain cases, it can be the reason why a settlement is reached.” 

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

The Role of Ambivalence in Mediation

The Role of Ambivalence in Mediation

“Your ‘if’ is the only peacemaker; much virtue in ‘if’.” ~Shakespeare (As You Like It)

I recently listened to an episode of the Human Brain podcast entitled “The Benefits of Mixed Emotions” in which Shankar Vedantam talked with Psychologist Naomi Rothman about how feelings of ambivalence help negotiators reach better decisions. It made me think about how the seemingly paradoxical phrases “it depends” and “what if” relate to dispute resolution via litigation and mediation, or courtroom and conference room, decision-making.

The phrases represent a dichotomy between the decision-making prospects inherent in litigated versus mediated dispute resolution processes. “It depends” describes what can happen in a courtroom, while “what if” describes what can happen in a conference room. Interestingly, however, Rothman’s research seems to indicate that the uncertainty of an “it depends” outcome might actually improve outcomes negotiated through the lens of “what if” thinking.

Rothman’s studies indicate that having mixed feelings – aka ambivalence – in the decision-making process can help a person make better decisions. Feeling emotional ambivalence, she says, makes a person more “cognitively flexible” because the mind is processing a situation that feels complicated, which can be uncomfortable. The discomfort slows down the decision-making process, stimulates a desire for more information, tampers impulsive reactions, and inspires better outcomes. Having ambivalence, it seems, helps to prioritize accuracy over decisiveness, which makes a person more open and receptive to third-party advice, reduces emotionally triggered cognitive bias, and leads to more accurate thinking.  

Mediation’s Place in Decision-Making

As a mediator, I can’t help but think about Rothman’s research in the context of negotiations between litigants. Experienced litigators often exchange settlement offers before engaging in formal mediation without much success and begin the mediation process expressing doubt about the prospects of a resolution. Often, however, even those mediations end in a negotiated settlement. But, why?

Perhaps Rothman’s studies offer an explanation. In the podcast, she mentions two variables that impact how difficult decisions can be made better. The first is the environment. The second is the presence of an ambivalent negotiator.  

The environment. Rothman says the first step to taking advantage of ambivalence in negotiations is establishing a cooperative environment. This first step may be difficult to replicate between parties and their advocates outside of mediation. One can hardly imagine a more highly competitive environment than litigation, or more focused personalities than litigators. Indeed, ambivalence is not a trait associated with zealous courtroom advocates, where disputing parties ask strangers to choose between bilateral options to decide who wins and who loses. Nor are litigants generally comfortable showing ambivalence to an adversary after months (sometimes years) of time and resources have been expended in fighting.

In litigation, where the prospect of trial and waiver arguments are present, Rothman’s advice to be strategic about showing ambivalence resonates. Indeed, as Rothman’s studies reveal, a person who shares ambivalence in a highly competitive environment – like litigation – risks being taken advantage of.

But, even during litigation there is at least one day in which ambivalence is seen less as a sign of weakness, and instead as a sign of a good faith negotiator – the day of mediation. During a mediation session, parties and their counsel often appear in a neutral location (or online) and take a figurative time-out from fighting. To encourage candor and objective reality-checking, the Texas Legislature has adopted rules to preclude the use of what happens in mediation against a party. Viewed from this perspective, Rothman’s research suggests mediation as an optimal environment through which the benefits of ambivalence can become possible for negotiations between litigating parties. 

Ambivalent negotiator. Rothman says her studies show that an ambivalent person in a negotiation can impact how people around them process information and think. Instead of a bilateral approach to winning and losing, she says that a negotiator who demonstrates an interest in winning, but not at the expense of another, invites a willingness by others to consider more information, inspiring a collective willingness to search for a better outcome for all.

While Rothman’s studies suggest the kind of ambivalence found in the actual decision-makers themselves, in the competitive arena of litigation, where stakes can be high, an ambivalent mediator can set the stage for productive negotiations. Indeed, mediators trained in negotiation strategies and litigation tactics often intuitively express ambivalence, thereby offering a level of trust and rapport that is hard to replicate between disputing parties and capable litigators, whose duty and training inspire zealous advocacy.

In sum, what Rothman discusses in the podcast proffers plausible insight as to why mediated negotiations can be more successful than non-mediated negotiations between entrenched litigants. Perhaps one reason mediation works is because it combines a new environment and ambivalent negotiator with litigants facing difficult options. On the one hand, the parties know that resolution depends on the prospects of who a judge or jury believes. But on the other, they know that mediation provides a chance to control how the dispute resolves if a settlement can be reached. 

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

Harris Hoss Earns Designation as a “Credentialed Mediator” by Texas Mediator Credentialing Association

Harris Hoss Earns Designation As "Credentialed Mediator" by Texas Mediator Credentialing Association

In January 2022, the Texas Mediator Credentialing Association (TMCA) accepted Felicia Harris Hoss’ qualifications as a Credentialed Mediator in Texas. The distinction indicates Harris Hoss’ commitment to delivering quality mediation services, satisfying the TMCA’s training, continuing education and experience requirements, and complying with its mandatory Code of Ethics and grievance process.

“It’s always my goal to provide lawyers and the parties with whom I mediate the best possible mediation experience and outcome for their situation,” said Harris Hoss. “The distinction as a Credentialed Mediator is one that serves as a reminder for me and, hopefully, for those with whom I work, the importance of always employing the highest standards of conduct in the mediation process.”

As part of its mission “to Promote Quality Mediation throughout Texas”, the TMCA has adopted standards of practice, a code of ethics for mediators, and a grievance procedure and educates the public about the benefits of mediator credentialing and the availability of its grievance process at no cost to the public or the consumer. For more information about TMCA, visit www.txmca.org.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

Harris Hoss to be Recognized for Contributions to Harris County DRC

Harris Hoss to be Recognized for Contributions to the Harris County DRC

These past couple of years have been harder on some than on others. For those caught up in a legal conflict, and unable to afford the cost of mediation to try to negotiate a resolution, it can seem like “the worst.”

This is where the Harris County Dispute Resolution Center, its committed staff, and a slew of experienced volunteer mediators step in. They (we) provide — for free — an opportunity for the parties to control the outcome of their conflict through mediated negotiations.

It is a privilege to serve. To be selected to receive the Houston Bar Foundation’s 2021 Award for Outstanding Contribution to the Harris County DRC is an unexpected surprise. 

As the charitable arm of the Houston Bar Association, the HBF supports programs that help provide legal representation to the indigent, promote community understanding of our legal system, and fosters the administration of justice.

The Houston Bar Foundation 2022 Annual Meeting and Award Luncheon is scheduled for Tuesday, February 15, 2022 at The Corinthian Houston. It will feature a keynote address by Bill Kroger, Immediate Past President of the Houston Bar Association, Former HBF Chair, Sustaining Life Fellow, Partner at Baker Botts LLP and Recipient of the 2021 James B Sales Pro Bono Leadership Award. 

Tickets for the event are on sale now through the Houston Bar Association.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

The 6-Cs of Mediation

The 6-Cs of Mediation

 

Earlier this year, commenting on the impact COVID-19 has had on Texas’ judicial system, Texas Supreme Court Chief Justice Nathan Hecht “estimated that it will take three years to plow through the backlog of criminal cases, and that doesn’t include civil and child protection cases that have slowed as well.”  In short, it’s been suggested that litigants should be ready to wait for a trial setting.

Given the time value of money, the financial and emotional costs of discovery, depositions, motion practice and hearings, trial at some point in the future, and the risk of appeal from the jury verdict, parties should prepare to be patient while a lawsuit works it way through the court-system. 

While courts are working diligently to move cases along and render justice as expeditiously as possible, for those cases that are resolved without a trial, many of them find finality and peace through mediated negotiations.

Some of the reasons parties find mediation to be effective are summed up below in the “6 Cs”:  

(1) Confidentiality. The Texas Legislature passed the Texas Alternative Dispute Resolution Act which says it is the policy of the state to encourage the peaceable resolution of disputes and the early settlement of litigation through voluntary settlement procedures, like mediation. Tex. Civ. Prac. & Rem. Code §154.002.

As part of this Act, the Legislature established broad confidentiality standards, subject to a few exceptions. What this means is that mediated negotiations are generally deemed to be confidential, and not something to be discussed publicly, including an open courtroom.   

(2) Control. Control is an easy benefit to understand and often manifests in a couple of ways: (a) timing and (b) terms for resolution.

Timing first. The importance of timing was alluded to in the opening paragraph, but it should be noted that, even before COVID, it was not uncommon for it to take a year to a year-and-a-half for a case to reach its first trial setting on a court’s docket. The additional, COVID-induced backlog that courts are facing simply enhances the benefit to parties who want to retain control over when their disputes are resolved.  

Another way parties take control over timing happens when they mediate before a lawsuit is filed. While some courts require mediation before trial, the parties – again with the guidance of their counsel – can agree to mediate at any time, even before a lawsuit is filed.

Next, terms for settlement. On what terms a mediated dispute might be resolved is determined solely by what the parties are willing to agree to. Neither the mediator, the court, nor the lawyers are decisionmakers during a mediation. What this means is that the decision whether to settle and on what terms is completely under the control of the parties.

(3) Creativity. Creativity is a concept that may best be understood by comparison to what happens in the courtroom. In a courtroom, judges are to fairly and objectively apply the law to the facts, including whatever remedies are allowed under the law and in equity. Generally, those remedies include money damages, declarations of right, and injunctive relief.

While these remedies are reasons why lawsuits get filed, sometimes there are other things the parties deem valuable to a resolution.

In mediation, the parties are able to brainstorm, explore, discuss, and consider all of those options, if any exist. So, for example, an apology, a payment plan, or any other thing the parties may deem suitable can be offered during a mediated negotiation, in addition to money.

In other words, the options available to parties in a mediated negotiation are limited only by the parties’ creativity and willingness to agree to a compromise.

 

(4) Cost-efficiency. No one can legitimately deny that lawsuits and lawyers can be expensive. Or, that the more time it takes to resolve a dispute, generally the more expensive it can be both in terms of time and money, not to mention lost opportunity costs.

So, while this may seem like an extension of the Control benefit, it is worth mentioning separately because the cost of litigation can be a significant decision-point in a mediated negotiation, and thus often worth considering independently as part of an overall dispute resolution strategy.

 (5) Convenience: Prior to COVID, most mediations were conducted in-person, but today most are conducted online. Applications like Zoom (and others being developed and introduced) – which allow for breakout rooms, the exchange of information onscreen, and confidentiality – are some of the reasons online dispute resolution (“ODR”) is proving to be successful. Other reasons include the fact that ODR eliminates the need for parties, insurance agents, executives, lawyers, and the like to travel making it easier to fit online mediations into busy schedules.  

(6) Certainty. To appreciate why certainty can be a valuable feature of a mediated resolution, one should also appreciate that trials do not always bring an end to disputes.

After trial, one or more of the parties may decide to appeal the trial court’s judgment, which can delay the end of the conflict, add more cost in both time and money, and present a situation in which the appellate court’s decision may be different from the decision the trial court reached.

Through mediated negotiations, parties explore reasons and options to agree to end the dispute instead of proceeding to trial and, thus, rendering an appeal unnecessary.

Related Post: Dispute Resolution Strategies: Litigation & Mediation

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

Dispute Resolution Strategies: Litigation & Mediation

Dispute Resolution Strategies: Litigation & Mediation

Both litigation and mediation are effective dispute resolution processes that serve important roles in our communities. Sometimes they are used in conjunction with each other, and sometimes they are not. When and why to litigate and/or mediate are decisions a party should make with the help of a lawyer. The following are just a few strategy insights to consider.

Before strategy-talk, it’s useful to understand some basic similarities and differences between litigation and mediation. 

The similarity first. Litigation is another word to describe a lawsuit. Lawsuits are simply one avenue available to parties to resolve disputes. Mediation, like litigation, is also a dispute resolution process. Both are effective dispute resolution techniques; but, that’s really about where the similarities end and the differences begin.

So, the first difference to understand is the nature of the process.

Lawsuits are by their nature adversarial proceedings. Lawsuits get filed when parties are not able to agree on a way to effectively resolve their differences. Within the confines of a lawsuit, lawyers argue their respective client’s positions to persuade a decisionmaker – either a judge or jury – to agree with their respective client’s positions. The parties do not control how the trial will end. Instead, through a lawsuit, parties are essentially asking a branch of our government – the judicial branch – to decide for them how and when a dispute will be resolved.  

By contrast, mediation is a structured negotiation between the parties that takes place either because the parties have agreed to mediate, or a court has ordered the parties to mediate. In other words, while parties may seek to persuade their opponent to the strength of a position in mediation, through the assistance of a neutral mediator, the parties’ goal in mediation is not to over-power their opponent, but rather to build a bridge with an opponent to find a mutually agreeable path to resolve the dispute.

Next, lawsuits and mediated negotiations occur in different settings.

Lawsuits play out in a public forum – the courthouse. And, because the United States has an open courts system, most filings made in a lawsuit, and the related proceedings (for example hearings and trials), are matters of public record. What this means is that just about anyone can get access to information the parties file and the court uses to make decisions in most cases, including transcripts of hearings and testimony, if any are made. 

By contrast, mediated negotiations happen in a private setting, like a conference room. And, generally, those negotiations are and remain protected as confidential. What this means is that, subject to a few exceptions, parties can freely negotiate through a neutral mediator knowing that negotiation positions are not going to be the subject of a later trial examination if a settlement is not reached.

 

Another key difference between a lawsuit and mediation is how the neutral is selected.

In a lawsuit, judges are elected to office by voters, and once on the bench, cases are assigned by the clerk’s office through an impartial process the parties do not control. Similarly, as many of us have seen on Boston Legal, CSI, A Few Good Men, or some other lawyer-like shows, litigants really have very little control over who serves on a jury. It may be that the lawsuit involves a very novel or complex set of facts, or technology, or emotional issues – issues that the randomly-assigned decisionmakers – judges or prospective jurors – may have little or, sometimes, no prior experience with.

By contrast, when parties agree to mediate, not only do they get to select the mediator, the parties, their counsel, and the mediator will work together as active participants in the mediation process. The goal of the mediator is to help the parties — the only decisionmakers in a mediation – to evaluate and decide how they want to end their conflict.

While mediators may also be lawyers, mediators do not give legal advice or make any decisions. Instead, a mediator’s role is to encourage the parties – with the guidance and input from their lawyers – to consider ways they can resolve their dispute. When the parties feel stuck, a mediator may ask questions or make suggestions to help them evaluate their case or brainstorm ways to bridge their differences and find common ground for a resolution.

What can happen at the end of a trial, and what can happen at the end of a mediation, are also two things to be mindful of.

At the end of a trial, the judge or jury will reach a verdict, decisions upon which the court will then enter judgment. Once the judgment is entered, if one party (or both) do not like the judgment, they each have a right to at least one appeal. In essence, the trial judge or jury’s decision may not be the final say.

When successful, mediation ends with a written settlement agreement, which is intended to bring an end to the dispute. In fact, sometimes parties are able to resolve their dispute in a mediation that occurs even before a lawsuit is filed.

If mediation is not successful, a mediator will let the parties know that they are at an impasse, after which the parties are at liberty to continue efforts to resolve their disputes through the court system.

If an impasse occurs that does not mean the mediation was a waste of time. Often, even when the parties are not able to completely resolve their dispute in mediation, they find the mediation process assisted them in narrowing the issues, or at least getting a better handle on the strengths and weaknesses of their respective cases. This insight often leaves open the parties’ interest in continued negotiations in the future.

Most mediators know this and will stay in touch with the parties’ counsel by checking in periodically and offer to assist the parties either with another mediation session, or through informal measures, such as telephone calls and emails.

How quickly a dispute can be resolved through litigation and mediation is a difference that can be measured in time and money.

It’s not uncommon for parties to wait several years before a lawsuit is tried. During the period of time leading up to trial, the lawyers, witnesses, and others will usually spend considerable time and money collecting and evaluating evidence, witnesses, and positions. The whole process can be quite expensive, stressful, and distracting to one’s daily schedule.

By contrast, many disputes have been resolved (as discussed above) through a concentrated and focused effort to meaningfully negotiate over the course of a half- or full-day’s time. The cost of the mediator, and the investment of a few days or weeks preparing for mediation, can be significantly appealing to some litigants.

So whether or not to mediate or file a lawsuit first, when to mediate if a lawsuit is filed, and who to enlist to serve a the neutral mediator are among the things parties, with the assistance of their counsel, consider when evaluating one’s dispute resolution options.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.