DEAL KILLERS IN MEDIATION BACK TO CURRICULUM VITAE PAGE
by David J. Blair

I remember giving ADR speeches to groups of lawyers ten or fifteen years ago, at the beginning of Iowa's modern experience with mediation of general civil cases, and the audience response was somewhere between hostility and indifference.

Times have changed.

Trial lawyers in current practice understand that sophisticated consumers of legal services will insist upon ADR competence as part of counsel's package of skills. Clients want to settle those cases which can be settled and identify early those other cases (and both categories are plentiful) which, because of differing expectations and inability to compromise, must be resolved by trial at the courthouse.

Accordingly, I accept without debate the proposition that effective mediation should resolve 100% of those cases which are within reach of settlement and that all counsel are motivated to achieve a fair bargain for their clients through the process of mediated negotiation.

The question is: Why does mediation sometimes fail to settle those cases which, as we often agree, "ought to be settled"? What are the tactics, conscious or unconscious, which precipitate an early adjournment of the mediation conference? What are, in my language and observation, the "Deal Killers"?

I offer the following:

1. Big Surprises. It is a deal killer to confront your mediation opponent during the conference with a new piece of significant information for which the other side is unprepared. Remember, this is a mediation and not a confrontation. There are no style points for craftiness. If you rely importantly upon a certain piece of information in your analysis of settlement value, then it kills the deal to spring it upon your opponent too late for intelligent consideration by the other side.

2. Holding Back. Relating to the foregoing, it is a deal killer to withhold information from the other side which is important to your evaluation of the case. There may be times when information must be withheld for strategic reasons, but the moral of the story is: Do not base your settlement decisions upon information which is withheld for strategic (i.e. non-settlement) reasons. If this is impossible, then the deal is dead regardless of fancy footwork by the mediator or counsel.

3. Absent Authority. It is a deal killer to negotiate if the real decision makers are not at the table. Please note that I am not talking about the related but easier issue of authority. Negotiators may never have all the authority they want or need, but a telephone call completed without delay is an acceptable method to obtain authority or simply for consultation. However, the negotiators at the table must be comfortable with the ability of each other to close the deal if agreement is achieved. This is an issue of credibility and not authority. The deal makers must be physically present, which means that persons at the mediation must include representatives from each side who can get the deal done if they elect to do so. The absence of such persons is a deal killer.

4. Misunderstanding the Process. Mediation is not a trial. Mediation is not a substitute for discovery. It is a deal killer to use mediation for either purpose. Effective advocacy in mediation does require a direct and candid presentation of litigation risks both to the mediator and the mediation opponent. Remember, however, that the jury has not been selected, that no one with jurisdiction for any ruling is in attendance, and that nothing good will be accomplished without the participation and consent of the other side. It is a deal killer to behave at the mediation as a mad dog or a wall flower. The key is forthright and collegial advocacy adapted to a setting where cooperation and consensus are critical to success.

5. Settlement History. As a mediator, I always ask both parties to recount the details of settlement history, if any. Then I hold my breath and wait for the sky to fall. The fact is that litigants and their representatives are poor historians of settlement overtures. Words used by one party are misunderstood by another. Consider the question, "Would you take $100,000?" This question with only modest optimism becomes the assertion, "I think the case is worth $100,000," or the conditional offer, "I'll pay $100,000 if you will take it," or the unconditional offer, "Please take my $100,000 because here it is and it's all I've got," or the sliding offer, "Here's my $100,000 for sure but there's plenty more where that came from and I can get it, just say the word, you betcha." What was said? Which version of reality is correct? It is best to address the problem of disputed settlement history immediately, when it first appears, because a major difference of opinion about prior demands and offers is most assuredly a genuine deal killer.

6. Going the Wrong Way. This is my personal favorite. It is a classic deal killer. "Going the wrong way" means a claimant who increases his demand or a defendant who cuts her offer at the commencement of mediation. This tactic is usually rationalized by changing circumstances ("my case just got a whole lot better"), which typically are not perceived as significant by the other side. In any event, the deal is dead and far beyond the mediator's curative skills because of the enormous insult and shock inflicted upon the other side. If you came here to go the wrong way, what are we doing here?

That concludes my short list of deal killers in mediation. I hope you will avoid them if possible or, if you must, save them for another mediator. I like done deals and smiling faces. I like effective advocates, with happy clients. If you think of any others, please don't tell your lawyer.