Negotiations: Relyea
Negotiations
Master Notes
Factors that lead to settlements—
-What if your parties defer to authority?
-Cases where you represent a large group, and the person responsible doesn’t
want to take responsibility.
General Approaches to Conflict:
3 basic ways:
1. Power (While useful can generate resistance) Inequality in finances or
resources
2. Rights (reference to standards and rules/regulations, case law or statute,
this is a rights based approach)—may
be valid, but leads to argument about rules, source of authority, etc.
3. Interests—can generate a high degree of compliance, even though it is not
coercive by nature, makes somebody realize that something is in it for them.
Approach that is least coercive generates the highest degree of compliance.
ADR Overview
Alternative Dispute Resolution is the umbrella term used for all dispute
resolution processes except for trial.
Negotiation is one of many ADR processes.
The term ADR is really a misnomer.
3% of the cases filed go to trial, 97% are resolved through some method of ADR.
Isn’t trial the alternative, and the mainstream part of your practice
ADR. The word “alternative” has
begun to be dropped.
Why use ADR?
How can you feel ruined, even though you won your case?
-Reputation suffers.
-Financial considerations.
-Lack of finality that comes out of trial.
You do get a decision, but does that make the dispute go away from the
parties? People routinely try to
avoid judgments and get away from them.
A lot of people relocate and go underground.
-Not getting full value. Not
getting the terms that you want.
-Trial harms relationships, it is just the nature of the adversary system.
To some extent mediation may help preserve or enhance relationships.
-Trials are stressful.
With mediation or negotiation there is guarantee of finality, i.e. you may not
reach a settlement. In court you
will get a decision, but the dispute may continue to last (if you can’t find the
person afterwards to satisfy a judgment, etc.)
Dispute Resolution Continuum
Options that you can choose from as a lawyer.
Continuum, organize from least coercive to most coercive.
3 categories, investigation, negotiation, and adjudication.
Keep in mind and think about what category everything fits in.
1. Neutral fact finding. This is an
investigation process. The neutral
fact finder sits down with the alleged harassment victim, the harasser, and
their named witnesses. It is a
sensitive process. First thing you
do is give them a speech, a preamble about who you are and why your neutrality
is. Neutral fact-finding is
voluntary.
Role-help decided whether fact-finding is appropriate at all.
Then recommend a fact-finder to the company.
Next thing you do is determine the scope of the investigation, this
includes a cost-benefit analysis.
Receiving the information, analyzing it, advising on the process and examining
the findings. Making decisions on
advising the company on what to do about the issue.
Refer to an outside fact-finder when the claims are serious.
If the employees aren’t cooperating with the internal investigation.
2. Negotiation
Negotiation is any communication between people that changes the terms of their
relationship by consent. This is a
very broad definition of negotiation.
3 stages
a. preparation
b. negotiation
c. implementation
Most lawyers spend most of their time on face to face negotiation and less time
on the preparation stage.
There are five different kinds of bargaining—distributive, positional
bargaining, rights based arguing, integrative bargaining, interest-based.
Some fundamental characteristics.
The parties themselves maintain the outcome, when to settle, and the terms.
You have the freedom to create non-traditional remedies.
Facilitation
Next process is called facilitation.
This is usually a group process whose goal is not 100% agreement, but
consensus among the members of the group.
Usually working with larger groups, aiming for consensus.
Stages of facilitation:
1. identifying issues
2. setting an agenda for acting on those issues.
3. they work with the company or the large group, actually carrying out their
decisions.
Mediation
A voluntary process, a structured negotiation process where a neutral third
party does two things, they used specialized negotiation and communication
techniques to help the parties resolve their dispute.
Voluntary in a sense that parties always have a right to decide whether to
settle and what the terms may be.
Mediation may not be voluntary in the sense of how you got there, you can be
ordered to mediation by the judge, or you could be ordered there by virtue of a
contract clause that calls for mediation, but once you get to mediation, the
decision to settle is always voluntary.
If the parties reduce their mediation settlement to writing that meets certain
statutory requirements, then that agreement becomes enforceable as a judgment
once mediation is over.
Mediation is like an assisted negotiation, it is where a third party comes in
and helps two parties negotiate.
Structured process, it is structured, it has identifiable stages.
It has very clearly well articulated stages.
First stage is introduction they explain their role, the process of
mediation, confidentiality, and if there are any questions about the process.
The next state is the joint session, the parties are all together in the
same room with the mediation and usually the plaintiff’s attorney goes first
because they are good at summarizing the facts and things.
Third stage of mediation is the caucus—which is a private separate meeting
between the parties and the mediator.
The mediator gathers more information and the parties are encouraged to
let off steam and talk about emotions and feelings.
The parties also talk about their interests, i.e. “I understand the
points of law, but what are your
business or long term interests.”
Fourth stage of mediation is the agreement stage, where the parties come back
together face to face. There is a
confirmation of the agreement, you put the process in writing, and give
comments.
Neutral 3rd party—mediators are usually strangers to the dispute.
The reality is that you will use the same mediator over and over again.
When you are in the process of deciding what mediator, ask what contacts
you have had before with the mediator.
Ask broad questions, have there been any other contacts aside from using
the mediator as a neutral third party (i.e. did they work with this person, do
you golf with this person, etc.).
Conciliation.
The next ADR process is conciliation.
This is different. The conciliator
freely offers ideas from their own experience, they are usually specialists in
the field of law, and lastly conciliation is more free-form.
This is mostly used for divorce, or custody type hearings.
It is still a negotiation process, however.
Settlement conferences:
Time is very limited. What is the
role of the parties? Many state
court judges invite the attorneys into the chambers to discuss the problem.
The party participation is nil, in these conferences.
The focus is going to be on traditional remedies, i.e. money for the most part.
Med-Arb
A combination of arbitration and mediation.
It is where you start off as a mediation, and if you hit an absolute
wall, the case is converted with the consent of the parties to arbitration and
makes a final decision.
Special Masters- this is a court appointed attorney to serve as a special master
to serve for complicated, complex cases.
Mass torts, environmental cases, intellectual property.
These cases may be just too much of a burden for the court so they hire
and appoint an attorney to serve as the judge for one of two purposes,
pre-trial, or even trial.
Arbitration
An informal adjudication process, same basic stages at trial.
The arbitrator has control over both the process and the outcome.
When you submit a case for arbitration or trial, you lose control of the
process. The rules of evidence do
govern arbitration in general, but they are relaxed.
In mediation, the issues are never even raised.
The overriding goal of the arbitrator is justice.
One device that almost all attorneys use is a confidential high-low agreement.
Before the arbitration starts, the attorneys stipulate among themselves
what the high and low amounts will be.
The arbitrator typically does not know this, if the arbitrator comes in
over the top, then they are only liable to that top amount they agree on, on the
other hand if the arbitrator comes back with zero, then the other party pays the
guaranteed floor. This manages the
risk of an extreme award, and also manages the risk of total loss.
Arbitration is a win lose process, where a decision is made.
Arbitration exercise:
Probate, father left a will, he gave all his property to his two kids with one
exception, the family portrait, and it has a lot of sentimental value.
Gives the family portrait to his favorite child.
Arbitration are win/loss processes.
There are subjective elements to every adjudicative process and there are risks
that goes along with everything.
1. Review – General Approaches to Negotiation
-Power
-Rights
-Interest-a very powerful method of appealing to somebody else
If you feel that the other person is not giving you decent, reasonable terms,
then don’t make an agreement.
Negotiation v. Adjudication—parties control a negotiation, adjudication is
controlled by a third party.
Special master decides the outcome, this is an adjudication.
Med-arb is also an adjudication process.
Remedies are typically limited to legal, or monetary remedies.
Is the only focus on negotiation and mediation, traditional rights and remedies?
When it comes to remedies you are not limited to monetary remedies.
How important do you think non-monetary settlement could be.
Rights v. Interests. In
adjudicative processes, the focus is on legal rights.
What is really important to you.
In negotiation and mediation, the focus is broader, it focuses on rights
and interests of the parties.
Negotiation debriefing:
-Interest is preserving the relationship
-Preserving the painting
-Negotiation process gives you freedom to consider the interests of both parties
and craft solutions.
Arc-from positions, to interests, to options.
Most attorneys get very stuck on positions and they will not entertain a
discussion of interests.
The negotiation was a win-win situation, both sides came away.
8
Negotiation—there is a lot of creativity, but there is also a lot of structure.
Negotiation, freedom of outcome, ability to create your own remedies.
Freedom of negotiation is the ability to reach individualized, customized terms.
Wide variety of agreements possible through negotiation.
Moral persuasion: convince somebody that you have a more important need than the
other party. It usually gets you
nowhere. It is very common, but it
doesn’t get you very far.
If one side only discloses information and the other does not, you will probably
not reach a settlement. Mutual
disclosure generally leads to resolution.
With one sided disclosure, exploitation usually occurs.
Controlled disclosure.
What the solution? Some people
wanted stems, others wanted leaves.
Initial position, each wanted the entire group of plants.
Take the time to find out what is most important to them.
The purpose of the negotiation was to demonstrate on the methods that you
fall back on.
Types of bargaining that you can use, so that you don’t have to fall back on
your default methods.
Positional Bargaining:
Most people think that this is what negotiation is.
Primary focus is on the positions, and offers and counter offers are the
primary focus. No discussion of
expanded remedies. You make an
offer, there is a response, and you go back and forth.
Rights-Based
When a lawyer rejects an idea of liability or fault, then they are shifting into
something called rights based arguing. Primary issue is who is right, who is
wrong. Who is to blame.
This type of bargaining can be useful, but does it work in all cases?
Distributive bargaining:
Any kind of bargaining is when the primary focus is on dividing assets or
allocating resources of a fixed pie.
Classic example would be a divorce case, a probate case where you are
dividing assets, anything that involves the division or allocation of resources.
These three types of bargaining are commonly used by lawyers.
These types of bargaining often lead to dead ends.
More sophisticated types of bargaining.
Integrative bargaining-
-some suits resist disputes by dividing.
Some suits respond to an integrative approach, they expand the pie.
This is a method of overcoming a very clear impasse.
When you locked in an impasse, ask if there are any other terms or
tradeoffs to get around the impasse.
Sales people of all kinds are training with integrated bargaining.
Integrative bargaining, sweeten the pie.
This is a powerful technique.
Interest-based bargaining:
The focus is on facts, law and underlying interests.
Not unlike the stop-sign hypothetical.
Interest-based bargaining can really help you identify with the parties.
3 steps
1. Identify parties’ interests
2. Prioritize the interests
3. Develop settlement terms that promote the most important interests.
Acknowledgement—sorry that you had to go through that.
This is an acknowledgement, or a recognition.
Integrative terms because they go beyond money.
Separating the people from the problem:
-Form of entrenchment when you are focusing on the people, not the problem.
Egos and emotions are involved, and viewing the other person as the
problem makes it seem like you are attacking the person, not the problem.
How to separate people from the problem:
focus on the problem itself, focus on the punctuality and timeliness (the
late example). Focus on the problem
itself.
Negotiation self-assessment.
Zero-sum bargaining: Typically discussed in the context of distributive
bargaining. When one person gains
something in a zero-sum transaction, the other person has to give it up.
Tactics are the maneuver made to achieve a goal.
Offer, counter offer, etc.
The strategy is a longer term broader plan that you have.
You use tactics to execute your plan.
93% is body language and demeanor.
DVD:
Reciprocate exchanges in information.
Focus on interests, not positions.
Don’t forget about the small details after making a large agreement.
Post-settlement, settlement.
Errors: Overconfidence, underconfidence (fail to value assets adequately),
escalation of commitment, mythical fixed pie (win-lost), anchors, frame problems
incorrectly, over or underestimate risks.
Preparation
-take into account alternatives to negotiation, what are the consequences of not
reaching a deal. What is your best
outcome, worst outcome, and outcome if you don’t make a deal.
Set you reservation price.
Don’t crystallize your expectations at one number, set a soft bottom line a plus
or minus bottom line that has a little bit of give one way or another. Set your
price and stick to it. Anchor is a
base number that influences the remainder of the negotiation because it is
reasonable. To have an anchoring
effect, the offer needs to be reasonable.
Anchor’s are typically thought of as opening offers.
Who goes first in the negotiation?
It depends on the context.
In a general business setting, take these considerations into account:
-If you go first, you can exert some control by setting the tone with your
initial offer. Going first also has
some possible risks, because you are not sure where the other party is.
There is also the risk of starting too high or too low.
These are considerations you need to take into account.
Then look for the custom and practice of what situation you are in.
Who goes first in litigation?
Typically, it is the plaintiff.
Before the negotiation even started they did research about gate receipts,
concession prices, etc. Research is
an essential part of preparation.
Most attorney’s do not do a good job of preparing for negotiation.
Preparation is at least as important as the bargaining stage.
Negotiation/bargaining:
Research gathering does not stop once you enter into the bargaining phase.
If there are gaps on your information you continue to gather information
on the bargaining phase. Litigation
context a midpoint approach is not merely as common.
Plaintiff, start a little further away.
Plaintiffs usually move further than the defendant.
What types of bargaining were used in the film? Positional and interest based.
They start with distributive and then expanded the pie to incorporate
integrative bargaining. They didn’t
use rights based bargaining.
Implementation
Don’t nibble.
CONVENTIONAL BARGAINING TECHNIQUES:
1. Extreme opening offer, it’s used, but has limited effectiveness.
This is a conventional tactic.
Try to make ambitious but reasonable opening offers.
Effect is usually they ask you to restart the negotiation and make a
reasonable offer.
2. Start low and go slow. Start low
and siphon out your offers and your money extremely slowly and try and
demoralize the plaintiff.
3. Matching moves. Parties match
each other move for move. This only
gets you so far.
4. Don’t bid against yourself. No
double moves. Make an offer, the
other party doesn’t make a responsive offer and so they ask you to bid again.
Response, is, I am not going to bid against myself.
5. Meeting in the middle splitting the difference is a conventional tactic in
negotiation. Often this is used too
early in the negotiation. This
represents a new platform to negotiate from.
Used best when there is a small gap to close.
6. Pacing—how you give signals on the timing of your move and the timing of your
move. Negotiation starts off with
you and your counterpart making moves quickly and making large moves that
gradually taper off and get smaller and smaller.
The time between moves gets more and more agonizing and the steps get
smaller and smaller. Large moves in
the beginning and small moves later on.
Quick moves in the beginning and slow moves at the end.
SOPHISTICATED TACTICS:
1. Use off numbers. Go above or
below the next psychological break-point.
Use to slow down a negotiation.
I.e. if the next step is 100k, go to 98.5.
If you want to speed it up, come in for 101.5, slow down is 98.5.
Look at your actual bills and tie your offer to your actual number.
2. Use asymmetry in your numbers.
In other words, instead of using matching moves, you can change up the speed.
They move 5, you move 13.
They move 10, you use 6.
3. Change up the pacing really works as well.
Be aware of the time between your moves.
You can manipulate this.
4. Sending messages with your offers.
A lot of lawyers get stuck throwing offers and counter offers back and
forth. If you link you offer with a
request for info or a message, then that could be very influential.
5. Fast forward their negotiations.
Toward the end, instead of applying the conventional tactic, what they will do
is get to a certain point and then fast forward to their best number.
Huge move, plus a final number.
This is a good way to change up pacing.
6. Use the mediator as a sounding board.
Sound them out about the case. The cost of litigating, the potential
outcomes of trial. Have a dialogue
with the mediator.
1.) 3-Step Interest-Based Bargaining Process
Overview of types of bargaining:
-Rights based
-Distributive bargaining, dividing or allocating.
Example would be a divorce case.
Also probate. Personal
injury.
-Positional-Focus is on offers and counter offers
-Integrated-18 candle story-buying a car, working at a lawfirm.
Integrated opportunities in PI cases-timing, I can right you a check
today. Short term payment is also
worth a lot. Another thing is
structured payments or structured settlements (used for minors and catastrophic
injuries).
-Interest based bargaining—focuses on facts and interests of both parties.
Idea that interest based bargaining has a broader focus.
Facts, law, and interest.
3-Step Interest-Based Bargaining Process
1. Identify the interests of the parties (all parties) (mutual gains)
2. Prioritize the interests. What
matters most to you and find out from the other person what matters most to
them.
3. Develop settlement terms that promote the most important interests.
What type of questions can be asked to bring out the interest?
What about specific limited questions in scope?
Not really helpful. Ask,
what are you in the mood for?
Explore somebody’s interests.
General phrasings you can use:
What’s really important to you/What really matters to you.
What are you looking for?
What do you want to accomplish?
What is this really about?
What’s driving this?
2.) DEFINING POSITIONS AND INTERESTS
Position- a position is a desired outcome or it is a perception.
Desired outcome, claim, relief, these are all positions.
Perception-your client was reckless, your client was careless, your client was
acting in bad faith. This is also a
position, it is an alternative definition.
Interests are underlying needs and concerns.
Underlying needs and concerns form the basis for the positions people
take.
Default Styles of Orientation (5 and they are located in the handbook)-
Competing—characterized by aggressiveness, use of threats, lack of cordiality,
use of resources and power.
Collaborating (Cooperative)—and assertive form of negotiating, it is
constructive engagement with somebody else.
Where you are willing to be generally amicable, but you are willing to
confront general issues.
Compromising-
Accommodating-where a person is completely unassertive and in order to avoid bad
feelings you will let another person have their way.
Avoiding-sometimes described as the number 1 dispute resolution tactic.
Cooperative approach, more amicable, it does tend to promote good relationships
with other negotiators. Problems
with cooperative approach can be that you may be taken advantage of by
competitive bargainers.
When somebody uses a competitive move against you, you need to respond with a
competitive move.
Keep in mind that your responsive competitive move should be reasonably
proportional. Do not use overkill
and dump all over the competitiveness.
You need ask for a trade off, remember to kick yourself into competitive
offsetting and ask for a trade off when somebody uses a competitive move against
you.
By far the most effective style of negotiation is to be versatile, to pick and
choose between the style, and to move between the styles.
Debrief the negotiations-
3 General Approaches to conflict-interests
Which approach did you use?
Interests-
See Power of Persuasion Handout
Reciprocity-
“I know you’d do the same thing for me…”
Scarcity, information scarcity-
Newsletters are a primary example of using scarcity.
If somebody makes a competitive move against you, you need to respond to a
competitive move with another competitive move.
Keep your responsive move proportional.
Three step interest based bargaining process that you can use. :
-identify the interests
-prioritize the interests
-develop settlement terms that promote the most important interest
Acknowledgment vs. an Apology
Acknowledgement is a verbal recognition of what somebody says.
Acknowledgement verbal recognition that does not accept fault, but it does get
you distance. Acknowledge-disputed
things, disputes, medical bills.
I understand, I hear what you are saying, I understand your position, I realize,
I see,
Watch out for the “Yes…but” construction—signals that you may not be issuing a
sincere acknowledgment.
Professional negotiators say, “yes…and.”
Asking Effective Questions in Negotiation
-How does this play into interest based bargaining.
-You know how to do this if you can get interest based answers.
How would you define what a closed question is in general?
Closed questions typically call for a yes or no answer.
Closed questions are specific and concrete.
Used in specific circumstances, pin something down, challenge, undermine,
determine. Closed questions are not
necessarily as good.
Closed questions give the answerer time to interpret the question an mislead
you.
Open ended questions work better for starting the negotiations.
Other types of questions.
What date was the contract signed?
What type of information does this question elicit?
What date was the contract signed, how much are your clients medical
bills, etc. These are all fact
based questions.
What about if you ask, “what is your authority for that?”
Does this bring out interests?
An interest is a concern or an underlying need.
This question does not elicit that information.
Certain questions by the way they are phrased or worded elicit
information.
Certain phrases elicit positions, i.e. the reasoning or interpretation.
Where do you stand on those points.
What type of information does this elicit?
These are questions about interests.
What if somebody says “My client demands $100,000?”
This is a position.
Ways to prepare for a negotiation—
1. Review the file and go over the facts.
Be sure to update your special damages because those change week to week,
month to month, etc. Most attorneys
are fine in the legal research department.
2. Set your aspiration price. You
must sit down with your client and find out what the client wants.
You need to get a dialogue going with the client.
See what they want, and
3. Reservation price—lowest you are willing to make a deal.
How to set your bottom line so that you are more successful—it is usually
really advisable to set a flexible bottom line with your client.
Be realistic with your advice, and let them know that with the framework
of the existing law and facts you will push hard to obtain their objective.
4. BATNA, WATNA, MLATNA—what is the role of figuring out what your client’s
objectives are before you start the negotiation.
Examining your alternatives to an agreement gives you a frame of
reference and it allows you to go through the alternatives and see how strong
you can be. If you have a weak
alternative you will be very motivated to work something out, if you have a
strong alternative then you will a little more demanding.
You will have a clear idea of where you stand if you can identify these
things.
5. Litigation risk analysis—a very specific mathematical analysis.
How well will you client do with a settlement in your pocket vs. a
verdict. Focus on your net result,
how much money can your client net?
Lean settlement is better than a fat verdict.
Trial is unpredictable, decision in trial is not final, it can be
appealed. Executing on the
judgment, are they going to carry it out.
People avoid judgments all the time, you can have a decision, but not
necessarily finality. Court costs
are involved, with a lean settlement you are capping your court costs.
Contingency fees can be bumped, the 30 days before the trial it bounces
up to 40%. If you settle early when
the attorney’s fees are still 33% the amount of money that goes into the
client’s pocket increases. Risk of
loss is big issue as well. You also
need to factor in comparative fault if your client is the plaintiff.
Risk aversion can be another element to enhance the desire to settle.
6. Style of negotiation—can chose what tone you are going to lose.
Which of the styles inherently provide the best tactic?
None of them, most lawyers will start their negotiation with cooperation,
with spikes of competitiveness.
WAYS TO SUGGEST A NEGOTIATON
-Key: do it without indicating that you are weak or that settlement is in your
interest rather than theirs.
“This case might be a good case for mediation, what do you think?”
Not—“Would you like to settle?”
Power, rights, and interests—
I’d be happy to talk about the background, if you are willing to talk to what is
important to you.
Strong Batna:
Weak Batna:
Tricks of the trade: offers and
counter offers, when the other party says, that is my best offer, you come back
and say, “is that the best you can do?”
Is that the most you can offer?
That is a good phrase to use.
In the book they talked about ways to close a deal, in a negotiation meeting for
last week. To reach closure, to
make the deal happen.
1. As you are approaching the end of your flexibility, signal to the other party
that you are approaching the end of your flexibility.
So when you say, this is my final number, signal to them beforehand, so
they believe you.
2. Discourage further concessions.
If you think you have a deal, don’t let the other party nibble and try to
extract further concessions. If
somebody tries to nibble, discourage nibbling and further concessions, tell them
that the negotiation is over. When
they start to nibble and they will, tell them that there is nothing more on the
table.
·
Bargaining Stage
of Negotiation
o
3 Stages
§
Preparation
·
Research
·
Set Aspiration
Price
·
Set Reservation
Price
·
Set Opening Offer
·
Analyze
Alternatives
o
You need to
analyze other alternatives in order to correctly determine
o
Analyze what
happens if you don’t reach an agreement.
o
When you are
litigating a case, what alternatives to you look at?
§
Settlement vs.
trial.
§
Damage to
reputation?
§
Harms
relationship with other party.
§
Attorney’s fees
are generally not recoverable in general civil cases unless there is a statute
or contract that says so.
o
There may also be
penalties that can be applied for not settling.
§
·
In order to
invoke this section, you have to send the other party a statutory, written offer
to settle.
·
Parties would try
to figure out what they would really get at trial when making an 998 offer.
Otherwise, the 998 offer has no real weight.
o
Look at best,
worst and most likely alternatives.
·
Choose Style of
Negotiation
§
Negotiation
§
Implementation
o
3 approaches to
Conflict
§
1)Power
§
2)Rights-Based
§
3) Interest-Based
o
5 types of
Bargaining
§
1) Positional
§
2) Integrative
·
Timing is one way
to add to the pie.
o
Structured
Settlement v. Payments over time.
o
You can come in
with a blank check, and say I can pay you right now if you settle.
§
3) Interest Based
§
4) Rights-Based
§
5) Distributive
o
Ways to Generate
Options for Agreement
§
1) Lateral
Thinking-Intuitive, creative, non-traditional, non-linear, outside of the box.
·
Nine dot
exercise. Try to connect all 9 dots with only 4 lines and without lifting your
pen from the paper.
·
Example-There was
a commercial breach of lease for millions of dollars.
§
2) Two Step Brain
Storming
·
Traditional brain
storming is you create an idea and you shoot it down.
·
A) Inventing
o
Creating idea and
thinking of possible solutions.
o
Before you move
onto the evaluation stage, you stay on the inventing stage and encourage
everybody to think of all possible idea.
o
Don’t limit
yourself to the reasonable, affordable, viable one. Think of any solution, even
way out solution.
o
Write every
single possibility down.
o
Only when you
exhaust ALL possible ideas, can you move to the evaluating stage.
·
B) Evaluating
o
Use every one of
the possibilities. If they are rejected, the next question has to be “why didn’t
you like that option?”
§
Cost? Timing?
Resources? Etc.
§
You can convert
the dead end into a spring board for what works and what doesn’t work and
reasons why something didn’t work.
·
Both of these
options used during the bargaining stage to genera options for solutions.
·
Can it ever be
pre-mature to talk about solutions?
o
Talking about
solutions indicates that you have finished presenting your side, and that you
are done listening to the other person’s side.
o
It may have a
negative impact if you rush to a solution. You might not really understand the
other parties need, and you are just thrown out arbitrary solutions.
o
Three Steps to
Interest-Based Bargaining
§
1) Identify
interests for all parties. You party, their party and the other side’s
attorney’s interests.
·
Even the other
attorney’s interests are important. Research the other attorney’s information.
You may be able to get useful information to help push your position.
§
2) Prioritize the
interests.
·
Talk to your
client to find out their interests.
·
Human nature is
infinitely variable and everybody has different reasons for wanting different
things.
·
For the other
party, try to find out what the other party is interested in by talking to the
other attorney.
·
Mine the other
attorney for their client’s interests. These are generally closely guarded.
§
3) Develop
settlement terms that promote the most important interests of the parties.
o
Reading Review
§
Should I ever
give up my bottom line to the other opponent?
·
In general no.
You don’t really want to tell the other party.
·
Exception is when
you have actually reached your bottom line, and you remain firm with it, and you
think there is a good chance it will be accepted.
o
Clearly label
this as your bottom line and let the other party know that you can’t go further.
·
Don’t’ just start
by giving your bottom line
o
People need the
dance of negotiation.
o
It assures them
that they got the best deal they can get.
·
Always test the
other person’s “bottom line” and see if it really is their bottom line. Also
expect to have your bottom line tested.
·
Confidentiality
is often thrown in as a last term to help people get around their bottom line. A
party agrees to go just little higher then their bottom line, if the other party
agrees to confidentiality of the settlement.
·
Mediator’s fees
are often used to go around the bottom line to. One party agrees to pay for a
portion or all of the mediator’s feed.
§
Objective
Criteria
·
What resources
can you use when trying to value your case, both the verdict value and
settlement value.
o
Look at the
database of jury verdicts.
§
Jury Verdicts
Weekly –
·
Updated every
week.
§
Be very careful
that you pick and choose your comparison cases carefully. If there is anything
that is distinguishable, the other party will hone in on it and try to make that
case not pertain to your case.
·
Cognitive
Barriers to Negotiation
o
1) Assimilation
Bias
§
Tendency for a
person in a conflict situation to only hear information that favors their
viewpoint. Selective hearing.
§
Repeat the facts
that were missed by the other party. Don’t think that you are being
condescending. They may have really just missed those facts
§
Put the facts in
writing.
o
2) Endowment
Effect
§
Tendency to
overvalue something you have an interest in.
§
For example, you
have been shocked at what people have offered you for your old stuff. Or selling
a used car, you have probably been shocked at how low somebody has offered.
§
You have a
financial stake in the interest, so it will affect how you value the asset.
§
Attorney’s are
also heavily invested in their own cases, and this may cause the endowment
affect.
§
Strategies to
counter endowment effect
·
Look to objective
criteria, other cases, Kelly Blue Book etc to provide objective numbers and
valuations.
o
3) Reactive
Devaluation
§
One party is
minimizing the value of the offer, because they do not like the other party.
·
For example, one
party hates the other party, so they never
§
Strategies
·
Separate the
source of the offer, from the terms of the offer.
o
Don’t mention the
other party’s name on the offer. Just say “the new offer is” instead of “Bob’s
offer is”.
o
Helps the party
focus on the terms, rather then their hated adversary.
o
You can suggest
the offer as if you had suggested it, instead of it being from the other
party???
o
4) Competitive
Arousal
§
1) The
auctioneer/EBAY effect.
·
There is a drama
and cycle of offers that you get caught up in.
·
Strategies
o
Prepare your
case. Set your aspiration, reservation and ermine alternatives. Determine your
goals and hold yourself to those goals and don’t let yourself slip.
§
2) Most people
have a grandstanding part of their personality.
·
For example, you
go jogging. And you hear somebody catching up. You look back and it’s an old
woman. You probably pick up the pace then.
·
This is another
aspect of competitive arouse.
·
You feel like you
need to put on a good show for everybody.
o
5)
Inattentional
Blindness
§
Different
attorneys can view the same objects/facts and see them in different ways, and
both view can be right.
§
Just because the
other attorney does not agree with you, does not mean that they are wrong. They
may have factual basis for their points of view.
§
Examples-Pictures
that can have two views. Rabbit/duck. Old woman/young woman.
§
You are focused
on the details of something, and you miss the big picture.
§
You attention can
be so selective that you may miss other things.
§
You could be so
focused on the money issue, that you don’t see that the other person really
wants an apology.
o
6) Mistaking a
small part of the truth for the whole truth
§
You may
understand a small part very clearly, but you don’t have an understanding of the
big picture.
§
Rumi Story –
1207-1273AD
·
Rumi put an
elephant in a dark room, and asked people to feel the elephant and describe the
elephant. Everybody had a different description and disagreed with everybody
else.
§
Some cases have a
dual nature. Tort/criminal aspects. Tort/Contract aspects.
·
You could miss a
whole step or portion that you missed.
·
Ethics
o
Things you should
say during negotiation
§
If somebody asks
do you have authority for 100k, and you actually have authority, should you say
no, I don’t have authority? Is this ethical?
·
You can not
misrepresent or misstate a fact.
·
Be careful about
saying something that is not true.
·
You can puff and
posture about the value of your case, but you can’t misrepresent actual facts.
·
You can puff and
posture about your interpretation of the facts, but you cannot misstate an
actual fact.
·
Landlord/Tenant
Exercise
·
Guest Lecturer –
Michael Roberts, Esq. (Mediator)
o
Preparation is
very important.
§
Keep you eye on
all the alternatives all throughout the process.
§
Lay out the
foundation of what will happen if we don’t get a deal.
o
Act in a way that
makes it easy for the other side to give you their best offer. Don’t be
adversarial or extreme an start yelling and making accusations.
§
Make the other
side feel that you are there to negotiate a deal. Don’t need to be angry or
hostile.
o
Be yourself in a
negotiation.
o
Advocate your
client’s position in a way such that the other side understands your client’s
views and understand how they may have contributed to the problems.
o
Acknowledge the
other side’s point of view. And let them know that you understand their point of
view.
o
Strengths,
weakness, probably outcome, what the other side is wiling to do to settle the
case, and what they are willing to do to settle the case.
§
When the mediator
asks these questions, you can hold your true numbers back (after you have
discussed with your client) and give higher numbers then what you think you will
get.
o
Build a
foundation of trust.
o
Don’t come into a
mediation with unrealistic expectations.
o
Don’t fuel your
client’s unrealistic expectations.
o
You let the
mediao convey to your client that they have unrealistic expectations.
2. Specialized Communication Techniques Used in Negotiation
-Active listening
-Summarizing
-Re-stating
-Reflecting
-Re-framing
-Acknowledging
3. Exercise—reflecting/re-framing
Can always say “I don’t have authority to talk about this,” or “my client is not
willing to pay this much.” If you
don’t get good enough terms from your adversary, either keep negotiating or
terminate the negotiation.
“Is that the best you can do?”
“Is there anything else you can offer?”
Reading from the book:
Negotiation text—negotiators dilemma.
Refers broadly to the issue of exchange of information between the
parties. If there is no disclosure
at all, chances are pretty high that you won’t get any final agreement at all.
If there is total non-disclosure.
If there is one-sided disclosure the party that makes that disclosure
risks being vulnerable. Drop a
piece of information that is new to them, and see if they will respond.
Specifically solicit the new information from them.
If both parties disclose the chances of success go up significantly.
Controlled disclosure, making the decision whether, when, and how to disclose
information.
Phrase things in the affirmative.
Push to the point where the partner says “no more” and then ask for things.
Is that the best deal you can make.
Is there anything more you can do?
Zig zag method.
Option is a term or trade off that exists within your negotiation.
Alternative occurs outside the negotiation, if an agreement isn’t made.
Specialized communication techniques:
-Active listening: most people think of it as listening carefully, but this is
superficial. Some of the actual
elements which make it work—listening to the speaker’s intended message that the
speaker wants to convey. Won’t take
superficial mistakes literally, you are getting to the point of their inquiry.
Second element is that you listen at least initially without judgment and
non critically. The listener is
suspending their own internal analysis, at least initially.
Uninterrupted time.
Another element of active listening is to control mind chatter.
Mind chatter is distracting things that go through your mind when
listening to somebody. How
distracting is mind chatter?
When you are listening actively, you are not just listening for the words, you
are listening for what is said and what is not said.
You are actively working on that.
You are also listening to the intensity, body language, demeanor.
To be an active listener you must listen with empathy, like you care.
Summarizing-a communication technique where the listener recaps several points
that were just made by the speaker.
3 important ways to be done to be effective.
1. A good summary has to be complete
2. The summary has to be accurate
3. The summary has to be neutral
Re-stating- communication technique where you rephrase one point somebody made
to you in a few key words. Restate
it incorporating their key words.
Variation is in your words, restating incorporates their words.
Restating is a single point that you repeat back.
Reflecting-like holding up a mirror to somebody as a communication technique.
Mirroring back their feelings or emotions. When you reflect you use a
certain type of emotion. What you
say has to be all about the speaker, not about you as a listener.
“So that makes you feel X.”
This is all about the speaker.
Not “what I hear you say is…”
This makes it about me.
Re-framing- a very interesting communication technique.
A rephrasing with 4 distinct aspects to it.
When you refrain you are converting the speaker’s statement from negative
or positive. Converting a statement
from the past to the future. From positions to interests (what really matters to
these people). You are also
shifting the focus. Reframing
should only be used in one instance, when the speaker wants to move into the
problem solving mode. If somebody
complains it could be about venting or sympathy.
You, as a listener need to confirm that a person is ready to move into
problem solving phase. Indirectly
they will invite input.
Acknowledging—a communication technique where the listener verbally recognizes
what the speaker said. It is
recognition, not agreement or disagreement, it is just a verbal recognition of
what somebody said. Not an acceptance or rejection, it goes a long way in
conversations in letting a person know you understand what they are saying.
Final stuff:
Format—will be 10 short essay questions, very concrete, very straightforward
factually. See a mix of fact
patterns that are similar to what we have gone over in class.
89 years old and in poor health and is on social security.
Which factors favor arbitration, which factors favor mediation.
Answers that weave in the facts of the question into your answer.
Good score is that you know the principle that is involved and you define
it correctly, the best scores also take the facts from the fact pattern and
weave them into the answer. Pay
attention to the spelling of terms of art.
Get the spelling exactly right.
Specialized Communication Techniques Used in Negotiation (cont.)
Negotiation Role Play
Negotiation reading review:
Jiu Jitsu—how to turn things around when people come after you.
Shift the focus from a harsh expectation relationship to a more
negotiation process.
Escalation—increase in reaction in the parties, the emphasis is on the increase.
Refocus, people sometimes need reminding, they will come back down if
there is a gentle reminder.
Specialized communication techniques:
Active listening-control mind chatter, give them uninterrupted time, listen with
empathy, listen non judgmentally—how can you hear their message when you are
analyzing when somebody is talking.
Summarizing—must be complete, must be accurate, must be neutral.
Restating- you restate facts, law, position, arguments. Communication technique
where you rephrase what you said.
Restating is in your own words, rephrasing is in their words.
Re-flect- you reflect feelings and emotions.
Communication technique where the listener synthesizes the emotions or
feelings that the speaker is trying to convey back to the reader.
Put the focus back on the speaker—“so you were feeling X” rather than “what I
understand you to be saying is…”
Re-framing—changing something from a negative focus to a positive focus.
One of the conversions that takes place is negative to positive.
Shift focus to the two people who are talking to each other.
If somebody says I don’t know what to do about this…Need to actively
inquire if they are seeking advice from you, or are they just venting.
If the person wants to vent, they will ignore your advice, but it is
another one of those insincere apology situations, it will create a new barrier
to communication.
Acknowledging—actively listening, that you understand what they are saying,
without it, it feels like you are holding back, whether or not you are agreeing
or disagreeing. It greases the
wheels for so much more communication between the parties.
Very powerful tool.
OTHER TECHNIQUES:
Re-directing-precise and powerful technique—redirecting is where you refocus the
speaker on one specific point and you invite them to go into more depth on that
point. Allows you to seize the
initiative. Comes up when your
client comes up to you for an initial consult, they spew out this long history,
and you say, “okay, let’s focus on this,” or “tell me more about this.”
Deferring-the postponement of an issue.
This could be seen as being evasive.
If they have to bring up the point that you have deferred, this is bad.
“I’d like to focus on this point, if that is alright with you.”
Setting an agenda—this is a discrete, distinguishable, identifiable thing we
have talked about before—setting a distinct sequence of multiple items.
Take multiple action items and you set the sequence of the agenda.
Recap the points and talk about the order you are addressing them.
Do not fight with opposing counsel about this.
Neutral re-framing—this is not re-framing, this is neutral re-framing, it is a
different technique altogether (remember for exam).
This is where the listener rephrases what the speaker said in neutral
terms by extracting the hostile or accusatory content.
‘”My client was bitten by your feral dog, the dog needs to be put down, it is
wild,” can neutrally reframe by saying “there is a lot of things you are talking
about with the dog, what happened on the day of?”
Not saying, “your client harassed, teased, and provoked the job.”
Your opinion or you believe are not good to use.
In response to “that’s not true,” you can say, “so what’s in your file is
different?”
How can you rephrase neutrally the nature of the case (dog bite)?
Effective word choice and effective questions in mediation.
Effective word choice—when you are negotiating in general, you want to use words
that are not legalese and that is more plain English.
Don’t be hypertechnical. You
want to avoid certain words and phrases—“bad faith,” “we came here in good faith
and you didn’t.” Avoid this at all
costs. “liar,” or any variation of
the word “lie,” “disingenuous,” usually there are more diplomatic and precise
ways to frame that. This is about
being precise in your wording. If
you are talking about an inconsistency in information, just take out the lie,
your client said x at depo, and y at trial, this is inconsistent.
Another word that attorney’s throw around—“delay,” “you dragged your
feet,” this is not constructive, it does not prove which one of you is right, it
is about doing what it takes to get your client the best result.
Just say, “part of the issue here is timing,” or the time frame.
Questions that are not conducive to constructive negotiations:
“What’s your side of the story?”
Story, it’s made up and you don’t believe it.
How about the use of the word side, what effect does that have on the use
of the parties? It doesn’t bring
people together to talk about different sides of the story, it is polarizing
language, and a good mediator would never use that information.
Undermines everybody’s credibility and challenges things in a subtle way.
“What’s your version?” If you say,
“what is your opinion,” that is not relevant or germane to that discussion.
Reframe questions of “what’s your opinion” in terms of the facts and the
case.
How can you ask people about that information without asking those questions?
“Tell me about the factual background from your point of view,” ‘tell me
about the authority that you think governs this case.”
Find out ways to test the other party any way you can.
8
Pay particular attention to the special communication techniques, how to define
them, how to recognize them, how to identify them, and when they are
appropriate.
Generating Options for Agreement
-Negotiation for “mutual gains” (versus “zero sum” negotiating)
-2-step brainstorming process
-Lateral thinking
Generating Options for Agreement—
Prep-negotiation-implementation are the three stages of negotiation and now we
are moving into the middle phase, negotiation.
What is the difference between an option and an alternative? Option is the terms
trade offs and offers that are made in the negotiation itself, the alternatives
are what happens if you do not settle.
Mutual gains v. zero sum negotiation.
Win win is the term for mutual gains negotiation.
Mutual gains is the direct term in the negotiation context.
Every negotiation involves two distinct aspects, claiming value and creating
value. Creating value relates to
mutual gains. Claiming value is
requesting specific things, asking for specific things.
Developing mutual gains
What is a zero sum negotiation?
Whatever you get, the other party has to give up.
Trading from a fixed pie.
Most people fall into the trap of whatever you give up, I have to give.
When you get to the point of the negotiation where you get to the point of
creating options and terms and trade offs, how do we do it?
What is the two step brain storming process that you can use?
Ideas are thrown out and generated non-critically and then you move on to
constructive criticism of the ideas.
What are the two stages?
1. Inventing is the first stage—a key rule that goes along with inventing is to
encourage all ideas, whether they are good ideas, bad ideas or in between.
If you say, “do you have any good ideas” this is limiting.
You should say, what ideas do you have that serve both our client’s
interest. You want to write all the
ideas that come up because this is an idea you will have with opposing counsel
over time. When you are discussing
options for settlement, discuss options that you have consolidated.
You don’t move on to the second stage until all the ideas are out on the
table.
2. Evaluate. Evaluate the ideas one by one and work through them systematically.
There is no magic. When you
are evaluating, rather than giving an up or down or asking opposing counsel if
they like or don’t like the idea, that invites a simple way of looking at the
options, instead asking if they like or don’t like.
That secondary conversation is the follow up one that lawyers don’t have.
They are never really sure that they completely thoroughly worked through
all of the possibilities.
What happens when you talk about creative options and you get stuck?
It is tough to think creatively.
Logical thinking: step by step.
Lateral thinking: outside the box, but what is the box or the framework that you
find yourself hemmed in by when you are working on a piece of litigation? The
box is the frame work of traditional rights and remedies as your framework
applies. Lateral thinking is
creative thinking, it is intuitive, it can also be counter intuitive.
For example if you have a lease, you can restructure or renegotiate the lease.
You can turn your attention to the future instead of only looking toward
the past. Traditional negotiation
is fault oriented and past oriented.
Don’t look in your rear view mirror when you drive, look to the future.
Very specific reasons why the trial is the last resort.
Cannot make misstatements of fact or law.
What is your authority to settle the case, if you misrepresent that and
fudge and you have less or more authority than you do, that is an ethical
violation.
Ethical rules allow you to puff and posture, so long as it is in the form of
your opinion and your interpretation.
Fixed patterns of listening:
-mind chatter
-cultural, mood, frame of mind, certain conversations may seem stimulating.
Overcome by being aware of the fact that your age gender, background,
personal history do play a role of how you listen.
Secondly you need to be sensitive about other cultures and features,
figure out to what extent the other persons culture is determined.
What are some of the fixed patterns that we have in listening.
Listening literally, don’t listen for the literal words, listen to the intended
message.
Give them uninterrupted time.
Focus on the listener.
These techniques will really aid your listening and have a positive effect on
the listeners.
Demonstrate behavior like you care.
“I’m sure you would do the same for me.”
Communication Techniques:
What do you have to lose by asking the mediator to come back again.
What interventions did the mediator make?
Consider what type of witness your client makes, the last thing you want to do
is put a bad witness that is your client on the stand.
Mediation—you can ask for the plaintiff’s work record to be cleaned up.
Apologies are huge for some of these people.
Mediation is not coercive.
What you need to know as an advocate:
-mediation is voluntary, the decision of whether to settle or how to settle is
always voluntary. You may go into
mediation by court order, but settlement is your choice.
Methods of referral to mediation:
-consent of the parties
-court can order you into mediation
-contract provision can state that you go into mediation
-statute, variety of statutes require that you mediate disputes
Once you get into the process yourself, the decision to settle is voluntary.
After the mediation is over, if you reach an agreement, is that agreement
enforceable? The answer is yes.
3 time periods, pre mediation, during mediation, post mediation.
Statute that says that mediation settlements can be enforceable as a judgment if
they meet certain requirements. CCP
664.6.
Party centered process, what that means is that the mediator works through the
parties. It taps into the parties
as experts and resources of their own dispute.
Different approach, you will feel that difference when you go through the
process. By contrast a trial is a
judge/jury centered process. Who
owns the dispute that comes into the mediation? It is the parties that own the
dispute, they have a right to own their determinations.
Stages of mediation:
Focus on commercial, it’s the most common kind.
1. Introduction
2. Joint session
3. Caucus
4. Joint agreement.
Introduction—the mediator sets the stage for mediation.
They describe their role, talk about confidentiality, ask if there are
any questions about the process.
Mediator is doing a bunch of subtle things, objectives: establishing their
control over their process of mediation—
1. showing their confidence and their certainty,
2. establishing some degree of repoir with the parties, establish a connection
with them. 3. they are setting up
and establishing an environment that is conducive to constructive negotiation,
everyone will be a part of this, everybody will have input, we will take this
one step at a time.
4.
Mediator may introduce their background.
JOINT SESSIOIN:
Talk about the factual background, the claims and defenses.
Plaintiff is invited to talk first, then insurance adjuster, then defense
counsel, then defendant. When
can a party speak openly without interruption in a civil case?
They can’t.
CAUCUS:
Opening up the conversation, the parties can talk about confidential
information. Let me know the pieces
of information you want to remain confidential.
Gives the mediator a broader picture, a deeper insight into the case.
Eventually the mediator has a broader understanding of the case.
Another thing that happens besides the exchange is that the mediator can
gather details. Mediator gets more
details, more specifics, more concrete information from the parties during the
private caucuses. A third thing
that happens is that the parties are invited to generate options for settlement.
Invention options is another thing that happens during the caucus.
Pre-mediation negotiations is another consideration.
Who shows up, who has authority, who sits in a representative capacity.
If during the course of a standard 4 stage negotiation, you feel the need to get
the parties back together face to face, you can ask the mediator to reconvene
another joint session for that purpose.
Models of mediation, models of mediation are different types of mediation that
you will refer your clients to. 5
types.
1. Commercial mediation, by far the most common mediation.
Criteria for commercial mediation:
-does the dispute between the parties predominantly inolve a substantive legal
dispute, commercial mediation will be your choice.
Breach of contract—commercial mediation, employment cases, harassment
cases.
2. Community mediation: a different model structurally that is used in neighbor
neighbor disputes. Issues are
primarily relationship issues rather than substantive issues.
Between family members, etc.
Structurally is different from the commercial model.
Same basic intro, but one addition, in addition to explaining the role of
the mediator, process, and confidentiality, you give basic ground rules for the
mediation.
The big departure is the next stage, in commercial you break into a caucus, in
the community process the mediator keeps the parties face to face in the
exchange phase and the mediator guides the discussion.
Allows questions to be asked, helps generate options for settlement.
Fourth and final stage is also the agreement stage.
If you can help during the guided discussion, the huge departure is
private caucus vs. exchange. The
role of an attorney would be vastly different, in commercial mediation you will
have an active role, in community mediation, you might find that they would like
the lawyer to have a secondary role rather than a primary role.
Family Mediation: Mandated by statute in
Peer Mediation:
Peer mediation is mediation of school ground disputes as students by the
mediators.
5th Kind; Restorative justice mediation, or victim offender
mediation: this is where the mediation process is used in a criminal context to
mediate issues between an offender and a victim.
Usually recommended by a probation officer, never used with hardened
criminals. Classic case would be
drunk driving cases. Also minor
offenses, juvenile offenses, disorderly conduct, first time defenses.
BENEFITS:
1. Mediation is confidential by statute
2. Economical.
3. Efficient
4. IF your client has a business dispute and doesn’t want a specific outcome,
that is not something a judge or jury can do, that kind of non-traditional
outcome is possible in mediation.
COMPARE AND CONTRAST MEDIAITON WITH TRIAL
|
Mediaton Elements |
Overlapping Elements |
Trial Elements |
|
Party-centered |
|
Neutral-centered |
|
Informal |
|
Formal |
|
Collaborative |
|
Adversarial |
|
Procedural structure-caucus, intro… (4 stages) |
|
Procedural structure-opening, closing, etc |
|
Rules of Evidence do not apply |
|
Rules of evidence govern and are strictly adhered to |
|
Role of mediator (facilitative and evaluative) |
|
Role of judge (evaluative) |
|
Role of the parties (active) |
|
Role of parties (passive and secondary) |
|
Negotiation |
|
Adjudication |
|
All remedies and settlement terms are possible, huge amount of freedom
to make monetary and non-monetary terms. |
|
Trial, only the traditional legal remedies are possible (means money for
the most part) |
|
|
|
|
THERE IS AN EXAM ON RESERVE
Cases that are not good for mediation:
-Cases where you are going after a new point of law or the case may advance or
change the law. NOVEL QUESTION OF
LAW
-One party is unwilling to negotiate.
CONFIDENTIALITY IN MEDIATION:
-Mediations in CA are confidential by law and by statute.
By operation of the law, they are confidential, the mediator does not
have to ask you to sign anything, they are automatic, evidence code 1119.
-Basis scope of confidentiality: two categories of information are confidential
by law; statements made by participants in mediation; and documents prepared for
during or pursuing mediation. That
is the confidentiality statute in a nutshell.
The effect of confidentiality is very, very profound.
If information fits one of those two categories, then it is not
admissible in a later proceeding and it is not discoverable either.
I.e. can’t discover admissions of other parties.
Huge exception, and that is that statements made and prepared during are not
considered confidential for purposes of a criminal proceeding.
So statements that a client makes in a civil mediation could be
admissible in a criminal case.
What you want to advise your client to do is restrict your comments to a private
caucus to a mediation for something like a BAC question that may come up as an
admission in a subsequent criminal trial.
Can the other party use the brief in the civil trial? No, it is a document
prepared for mediation.
Preexisting discovery is totally usable and totally admissible and CAN be used
during a later civil trial.
When does confidentiality apply? It applies when a mediation starts.
The first communication with the mediator commences the confidentiality
privilege.
What about if you don’t reach a global settlement?
Does the mediation continue, or is it deemed to have ended at some point.
Statute says that the mediation is deemed to have concluded when there
are no communications between the mediator and the parties for 10 full days.
Negotiation is a ripeness and a timing point.
Can’t negotiate until you can classify damages, etc.
Enforcing Settlement Agreements:
Under 664.6, parties to a settlement agreement can create an enforceable
agreement if the parties reduce it to writing and sign it; OR if they put the
agreement to record to the court.
Case has to be pending in litigation of 664.6 does not apply.
By far the most common method of creating an enforceable agreement is to reduce
the agreement to writing and then the parties sign it at the mediation.
Too time consuming to put it the judge.
They just reduce it to writing during the mediation.
Problem, what happens if your adjuster is in New York and the mediation
is in CA? They have to sign it.
If they give you authority to settle, you have to get their signature, so
if they leave you fax the agreement to them or try to get an agreement within 24
or 48 hours.
If all documents prepared for during and pursuant to agreement confidential,
doesn’t that make the settlement agreement confidential?
It does, but basic terms exempt that document.
It is evidence code 1123, and it involves an attorney including magic
language into your documentation to exempt that document from confidentiality.
Magic language is, “Parties intend for this agreement to be binding,
enforceable, and admissible.”
Drafting settlement agreements:
Don’t forget to be clear on your date for performance.
ROLE OF CULTURE IN NEGOTIATION:
-To some extent people have shared values and universal interests, but other
ways people look at the world are distinct
Individual v. Collective
-In some cultures, they are collective cultures, the main objective of any
social interaction is group harmony and group success, in Japan it is called wa.
Will sacrifice anything for your family, your circle of friends, your
group in your department, and you will give up your individual rights and
preferences.
-U.S. is more of an individual culture, freedom of expression, from a collective
point of view this is seen as very fractured, selfish, or lonely.
Egalitarian Society v. Hierarchical Society
-Hierarchical puts status on age, status, you may need to play into that to get
your negotiation done. All things
you need to think about and will affect negotiation.
Every communication is to some extent a cross cultural negotiation:
-Regional differences, put into equation age and gender.
How does culture come into play in negotiation?
-Direct v. indirect negotiation.
Some cultures want you to get to the heart of the matter quickly, get to the
point quickly. Other parts of the
world consider being direct to be hostile and one must be indirect and so they
will rarely say things in a concrete direct way.
Use of the word “no.” Americans feel very comfortable saying “no” or any
variation thereof. Cultures that
believe in indirect communication rarely believe in the word “no” they will say,
“we’ll think about that,” or “we’ll get back to you.”
Eye contact, physical proximity are other factors.
Touching is also heavily culturally determined factors.
In the U.S. direct eye contact is a factor, and without eye contact, you
may be perceived as not paying attention.
This may not be the case, as some cultures do not make direct eye contact
or favor directness.
MAIN POINT: Every exchange is a cross cultural exchange.
Pay attention and be sensible to these changes.
FINAL EXAM:
-There is an exam on reserve at the LRC, so you can see the format.
-Focuses on terms and concepts, methods for generating options.
What will help you do better?
-Bonus points given for organization and clarity.
-Substance side of things, do not over answer or under answer questions.
Don’t just dump information into the books.
Conversely, don’t under answer questions.
If asked what the four stages of commercial mediation are, don’t just
list intro, joint session, caucus, etc.
Hash out what those steps are.
-Weave in the facts from the question into your answer.
Every single fact is there for a reason.
If you can integrate facts into answers, it will get you a better score.
-Spelling terms of art correctly is a good way to score higher.
-Study notes from class and written handouts.
Don’t really focus on what’s in the books.
What have we covered in this class?
Focus has been on practical and relevant things.
1. litigation risk analysis
2. CCP 998 offers (written settlement offers) not accepted within 30 days and
don’t do better in trial, you are penalized.
Penalties for not accepting if you can’t do better at trial.
3. Enforcing settlement agreements, know mechanism for enforcing settlement
agreements.
4. Drafting settlement agreements
5. Communication skills, pay close attention to communication techniques in your
notes.
6. Cognitive barriers to communication, what was the cognitive barrier on the
video-inattentional blindness (on list of cognitive barriers).
7. Mediation, 5 types, stages, role of attorney, role of mediator (being
facilitative and evaluative).
Commercial mediation, community, peer, family, and restorative justice.
Confidentiality of mediation—important to know what is confidential.
Exceptions to confidentiality.
I.e. civil and criminal dual nature case.
What you say in mediation can be used as admissions in a criminal case
down the road.
8. How not having insurance can affect right to recover.
What if your client does nothing wrong, but also carries no insurance,
does that affect what they can recover, even though they were the innocent
victim? Yes, it does, statute in CA that heavily penalizes people for not having
insurance. If the innocent victim
of a tortfeasor does not have insurance, the only thing they can recover from
the tort-feasor is special damages, they cannot get general damages for pain and
suffering. Irrelevant to fault.
First thing to ask your client if they carry insurance of their own.
9. ADR in general and ADR continuum.
10. Negotiation
11. 5 kinds of bargaining
12. 3 steps of interest based bargaining
13. 5 styles of negotiation
14. methods of generating options for agreement (lateral thinking/brainstorming)
15. Based on Dispute Resolutions Program Act of CA code.