Too much mediation? Try a civil conversation first.

Elden Rosenthal was spot-on in his article Second Thoughts on Mediation, A Trial Lawyer’s View. Mediation is not appropriate or necessary for every case. Mandatory mediation contravenes the most fundamental principle of mediation: self-determination regarding what process to use to resolve the dispute. See, OREGON MEDIATION ASS’N. CORE STANDARDS OF MEDIATION PRACTICE (Rev. 2005).

The expectation of mediation discourages negotiations. Not long ago, another attorney initially refused to negotiate. He said, “I do not want to put a number out there before mediation.” I responded that I would not mediate the small case. As Mr. Rosenthal urged, attorneys should refuse mediation unless the parties are unable to negotiate their own resolution.

The expectation of mediation in which the parties remain separated can discourage good faith. As Mr. Rosenthal notes, when attorneys and parties never expect to talk with one another, it can lead to overly aggressive litigation ploys. When the parties never sit face-to-face, then neither needs to “keep a straight face” when they open with unrealistic “demands” and “offers.” The results are predictable. Litigation is more expensive than necessary, and mediations begin with impasse over who will step into the realistic range first.

Some courts have responded to slashed budgets and reduced personnel by requiring mediation as THE alternative to trial, and some lawyers prefer mediation because they lack confidence in their negotiation skills. Perhaps the Oregon State Bar should be more directive in what CLEs an attorney must take during the first 3, 6 and 9 years. Perhaps forcing attorneys to study negotiation would encourage them to negotiate and, thereby, resolve cases without trial or mediation.

Some courts that order mediation simply find an available trial judge to mediate. If the parties must pay for involuntary mediation, then, at the very least, the parties should be able to select their own mediator. Mediators vary in skill and dedication to their profession. Some trial judges are terrific mediators, but not everyone ranks in the top 10%.

I agree with Mr. Rosenthal’s biggest point: the pendulum has swung too far toward mediation as the primary alternative to trial. Members of the bar need to push back and negotiate first.

Jeff Merrick, OSB # 842987
Trial Attorney and Mediator

Improvisational Negotiation: Book Review

Improvisational Negotiation” is a fun little book by Jeffrey Krivis.  Essentially, it is a breezy collection of stories that could loosely be called mediation case studies.  The subtitle sums up the tone and content: “A Mediator’s Stories of Love, Money, Anger – and the Strategies that Resolved Them.”

Each story sets forth the nature of the people and their conflict, from a rock & roll band member jilted by the star, to wealthy people battling over a multimillion-dollar New York building.  Medical malpractice cases, car crash cases, toxic mold in a rental home. . . you name it, and there was an example among thirty case studies.  The almost jocular tone kept me reading along.

After each story, the author has a section called, “What Happened?” in which he highlighted the key turning points in the mediation. To wrap up each study, Author Krivis listed the take home points in a section called, “What strategy can we learn?”

What I found most interesting was all of the various approaches on exhibit in this book. Typically, mediators find a comfort zone.  For example, some mediators always keep the parties in separate rooms.  Others always start with the parties in the same room.  The overall impact of the thirty scenarios is to emphasize that a good mediator will try to read the parties, identify what are their needs, and modify his or her approach to meet those needs.  For some situations, letting the parties hear what the other side says unlocks the emotional barricade preventing closure. For other situations, letting the lawyer ask a few questions of the other party proved pivotal.

The point, I believe, is to be flexible and creative. If the parties give you something to work with, then use it. Perhaps the best example of this was the gambling approach. When the parties were packing up to leave, defendant told plaintiff his case was lousy, and no jury would award more than $10,000. “Don’t bet on it,” said the plaintiff. “I can’t wait to see your face when the jury returns a verdict for $150,000.”

The mediator’s light bulb went off as he proposed that the parties make that bet. $20,000 paid to the party who guesses closest to the verdict. This would help cover attorney fees. That got the the parties thinking. They were willing to bet, but each wanted to re-think their positions. So, the mediator gave them until noon the following day to fax their betting numbers. Sure enough, the gap narrowed to $40,000 and $90,000, leading to a $65,000 settlement.

Overall, “Improvisational Negotiation” was an entertaining and educational read that I’d recommend to mediators and others interested in mediation.

Jeff Merrick
Merrick Mediation Services
© 2012

Oregon’s Foreclosure Mediation Law

Oregon Senate Chamber
Oregon’s Legislative Assembly passed a law to requiring mediation for the purpose of negotiating “foreclosure avoidance measures.” If Governor Kitzhaber signs the law, then SB 1552, kicks in 90 days later. This post answers some of the frequently asked questions.

Q. What loans?
A. The law applies to residential trust deeds.

Q. Who?
A. SB 1552 applies to beneficiaries of trust deeds, that is, banks and other lenders who seek to foreclose.

Q. What must banks do?
A. If lenders want to foreclose, then they must enter into mediation with the “grantor” (home owner) to negotiate over “foreclosure avoidance measures” if the homeowner formally requests mediation.

Q. What’s a “foreclosure avoidance measure?:
A. An agreement between the lender and homeowner that uses one or more of the following to modify the trust deed:

  • Lender allows the homeowner to skip or delay payments.
  • Lender modifies the payment terms.
  • Lender accepts a “deed in lieu of foreclosure.”
  • Lender allows a short sale.
  • Lender does something else to enable the homeowner to avoid foreclosure.

Q. How will the foreclosure mediation law work?
A. The homeowner requests mediation. Then, within 30 days, the mediation service provider must send both parties the date, time and place of the mediation, which must occur between 45 and 90 days. The law directs the Attorney General to contract with a mediation service provider, and the AG must prepare rules that cover the qualifications and fees of the mediators.

Q. What are the exceptions?
A. The biggest exception is that this law only applies to the big lenders. If the lender did not start more than 250 foreclosures during the previous year, then they can opt out of the mediation requirement. One hopes, however, that the program will benefit lenders and homeowners, so that lenders will want to participate.

Jeff Merrick
Merrick Mediation Services
© 2012

Getting Past No: Book Review

“Getting Past No,” is William Ury’s sequel to “Getting to Yes,” the classic book on how negotiators should bargain. “Getting Past No” provides basic strategies on how to deal with difficult people and situations. In other words, the book tries to answer the question of what to do if the other side does not “play nice.” This post highlights some of Ury’s key concepts. My one-sentence summary is: Be the adult in the room, and keep your attention focused on your goal, which is to achieve a result superior to what you will likely achieve without settlement.

Successful negotiators turn adversaries into problem-solving partners. Author Ury identifies five barriers to such cooperation. (1) Your own emotional reaction to the adversary’s conduct. (2) The other side’s emotion, which might include anger, hostility, fear, distrust, or the feeling that they are right and you are wrong. (3) Their efforts to state a position and insist that you give in. (4) Their desire to avoid losing face by accepting your proposals. (5) Their power and lack of interest in cooperating.

Ury offers strategies to address each of the five barriers. The first is to “Go to the Balcony,” his metaphor for looking at yourself and the situation as an observer rather than as a fighter who naturally reacts. Once on the balcony, (a) you name the tactic used by the other side, whether stonewalling, attacking or tricking, (b) give yourself a chance to think, and then (c) determine your best strategy for response, which, hopefully is, “Don’t get mad; Don’t get even; Get what you want.”

The response is what I call being the adult and what Ury calls, “Step to their Side.” Use your best listening skills. Agree with and acknowledge their feelings and their points, to the extent you can. Measure your words and tones so as to not provoke a negative response in an effort to create a better environment for negotiating.

Step three for Ury is to “reframe” rather than reject. Ury provides strategies and examples of how to get the other side off their positions and how you can deal with their tactics. His examples throughout the book draw from many situations: from international diplomacy, to business negotiations, to parent-child discussions. This section of the book offers useful reminders to litigators of the different mindset we must have when our goal is to convince an adversary to do something as compared to winning before a judge or jury.

Step four is to “Build Them a Golden Bridge,” between their initial position to a mutually acceptable place. Ury identifies obstacles to agreement, including (1) it was not their idea, (2) their interests are not met, and (3) their fear of losing face. Here, the biggest mistake a negotiator makes is to downplay the importance of the process or ritual of negotiations and to announce that he has divined the correct solution. A skilled negotiator takes a step-by-step approach and involves the other side. Give them the opportunity to leave their positions in a face-saving way.

The last step is to use your power to educate the adversary, not to escalate the battle. Sharpen the choice between the face-saving settlement and the consequences of no settlement. Begin with reality-check questions: “What do you think will happen if we do not agree?” Then, “warn, don’t threaten.” Such subtleties convert negotiation from a skill to an art. A threat is what you will do to them. A warning is an objective and respectful statement of what will likely happen. Continue to contrast the choice between the opportunities of settlement to the consequences of no settlement.

The overall message I received from “Getting Past No” is that negotiation is a process and ritual. To succeed one must:

– Identify your adversary’s tactics.
– Identify and control your own visceral response.
– Be the adult and try to guide the other side to a sensible outcome.
– Stay focused on the goal: to improve upon your likely alternative to settlement.

Jeff Merrick
Merrick Mediation Service
Copyright 2012

Court-Connected Mediation in Oregon

Clackamas County Courthouse
Oregon courts rely on mediators in many contexts.  Mediation helps reduce the burden on judges, because it reduces the number of trials at all levels, from small claims court to the Court of Appeals.  During this recession, slashed budgets caused the courts to reduce employees, hundreds of them, from low-level staff to unelected “Pro-Tem Judges.”  As a result, the increased use of mediation has proved critical to a well-functioning court system.

Mediation benefits people, too. Mediation can offer solutions that a trial just cannot provide.  In trial, there’s at least one loser, and sometimes, both parties lose.  When the parties control their outcome, they often resolve issues in a way that works better than a judgment, which, after all, is just a piece of paper that the winner must then try to enforce.

Clackamas County recently began its pilot project for mediating small claims court cases.  Under the program, the court directs 50% of small claims cases to mediation.  If the parties settle, great.  If not, they can have their “day” in court.  Well, not really a day – more like 10 minutes, according to Judge Darling.  In reality, “small claims” are not so small.  People can sue for up to $10,000 without a lawyer in small claims court.

My Lake Oswego office is in Clackamas County, and I’ve volunteered to serve as a mediator for this six-month program.  The county department for Resolution Services is doing an excellent job running the program.  First, it provided an all-day training for volunteer mediators.  Then, once per month, it provides an evening session to discuss the program and work on mediation techniques.  After each mediation, program leaders gather the volunteer mediators to discuss what happened that day in order to improve the program and to coach the volunteers.  Volunteers range from master’s degree students trying to get experience, to a retired mediator / lawyer in his 70s who wants to serve his community.

Last week, my mediation involved a very interesting situation.  Confidentiality prevents me from discussing the details.  But, it was clear that the lawsuit for $10,000 was just one part of many parts of the problems between these two parties.  For them, mediation truly offered them the best way to get their issues resolved and move on with their lives.

Jeff Merrick, © 2012, Merrick Mediation Services

112 Ways to Succeed in any Negotiation or Mediation: Book Review

Last week, I wrote about a great book on negotiations. This week, I write about a terrible one. 112 Ways to Succeed in Any Negotiation or Mediation: Secrets from a Professional Mediator is not worth 112 minutes of your time. It is not even worth 12 minutes of your time.

Here’s one of those secrets that only a professional mediator could possibly know: “The secret to making the best opening offer, which allows the continuation of the negotiation process, is that there is no secret, just good judgment under the circumstances.” (p. 67).

The book is a collection of seemingly random thoughts, 112 of them. (I guess; I did not actually count them.) The number gets so high because several of the thoughts are redundant or contradictory. One example of redundancy: on page seven, the author discusses the benefits of buying coffee or lunch for your opponent. On page 73, he urges readers to establish a friendly rapport with your opponent early by “giving a gift or doing a favor for someone[.]” And how’s the following for providing guidance to negotiators? Let’s see if you can square the following bits of advice. (a) “Your competence in your field is an important source of power in your negotiation. Maximize that power.” (p.70) (b) “In negotiations, it never pays to reveal your true intelligence or your true position. It’s better to let the other side underestimate your skills.” (p. 83).

Several of the tips are intended to be practical reminders. For example, the author reminds us to bring food and drink to a mediation session. Here’s a few more secrets that, perhaps, the author could add to the next edition. Tip number 113: Don’t forget to zip up your pants. Number 114: Show up on time. Number 115. . .

Jeff Merrick
Merrick Mediation Services
First Published, ©11/2/2011

When Impasse Occurs, Normalize it for the Parties.

Last Friday, I enjoyed an all-day mediation training entitled, Impasse-Breaking and Ethics: Tips, Tricks, Traps and Tools, by Sam Imperati. Sam used his playful demeanor to keep us engaged while he worked through his points. He made many points, too many even to categorize in this blog post. The one point I will emphasize is this: normalize impasse.

So what does “normalize impasse” mean? At several times throughout the day, Mr. Imperati counseled us to reassure the parties to negotiations that what they are going through is normal. Instead of being afraid of impasse before it occurs and frustrated by impasse when it happens, one should simply expect impasse as part of the process. In fact, experienced mediators welcome impasse as a necessary step, in “the dance.”

Sam articulates three points of impasse in a typical negotiation. The first is when neither party wants to be the first to present a realistic proposal: Plaintiff “demands” too much and defendant “offers” too little. Once both parties finally take the leap of faith into the realistic or “resolution zone,” then they, again, balk at getting to the narrower zone of where the deal will be struck.

A B C D E  F G H  I  J  K  L M N O

To illustrate this, Sam employed a grid that looks like a football sideline. Instead of numbers, he used letters from one “end zone” to the other of A through 0. The first impasse is the time when the parties hesitate to narrow the gap from between A and O to between C and M. Next, they stubbornly delay narrowing further to E and J. Finally, when they get to the true settlement range, which is between F and I, progress halts again.

The third impasse is less about money than about who feels like the “winner” and who feels like she or he “conceded.” At this point, both parties have narrowed the gap so much that it would be irrational to let resolution slip away. However, as we all know, emotions control negotiations of many disputes more than does mathematical calculation.

So, for me, of the 100 or so good points Mr. Imperati made during the day, MY take home point was (a) to counsel the parties to expect impasse, (b) let them know that what they are feeling is normal, and (c) then apply mediator tools to help them work through impasse toward resolution.

Jeff Merrick
Merrick Mediation
©March 12, 2011

Getting to Yes.

I found the classic book, Getting to Yes: Negotiating Agreement Without Giving In, on my bookshelf last week, and I read it again. Considering that less than 1% of civil lawsuits in Multnomah County, Oregon result in a trial by jury, every trial attorney needs to negotiate effectively. I have the second edition, written by Fisher, Ury and Patton of the Harvard Negotiation Project. This post highlights the key concepts in their approach.

The authors urge negotiators to reject bargaining over “positions.” A “position” refers to a statement such as “I will take no less than $100.” If that is true and if the buyer cannot pay $100, then there is no point in negotiating. On the other hand, if the person – secretly – would take $60, then staking out the position of no less than $100 could prevent a favorable settlement, especially if the other person is prepared to pay up to $95.

But if price seems to be the only thing over which to bargain, then what can negotiators do other than toss out numbers and try to bluff the other side as to the price they’d actually pay or accept? The authors set forth a four-part process.

First, separate the people from the problem. We need to deal with both. The above “problem” to be solved could be stated as follows: “I’d like to sell this item, and you desire to buy it. How can we come up with an acceptable price.” However, If a negotiator stakes out a position such as “no less than $100,” then we need to deal with the issue of him defending his position and his integrity. In my law practice, we often need to address the real emotions of my clients for which there is no dollar value. The failure to address “people” and “problem” as real and separate issues can confuse the process and lead to failure or less-satisfactory results.

Second, one needs to identify interests. At first glance, there seems to be nothing to discuss other than price: I want to pay less and you want to receive more. But further discussions might reveal other interests. For example, the buyer might not have more than $50 now, but will receive some money after he sells something. The seller might want to delay receipt of income until January 1. The buyer might need to spend money on shipping. The Seller might have regular delivery routes.

By identifying interests, negotiators then move into the third phase of the method: invent options for mutual gain. In this example, the options become apparent: consider payments over time and discounted or free delivery. Nevertheless, there is still the issue of price.

Here is where the authors insist on developing and using objective criteria instead of just talking tough. If the seller says, “It was my grandfathers, I cannot sell it for less than $100,” The buyer must refocus to, “I understand, but let’s determine what is a fair price for non-related people.” [I’ve used my own examples in this post, not the authors’.] Bargain over the process: how one can we determine a fair market value that we each might be able to accept. Try to get commitments on process. This avoids taking a position and then defending it. Agreeing on an objective process does not, necessarily, bind the parties to the result of the process, although that is a possible solution, too. The authors point out that the more negotiators can separate ego and feelings from an objective process, the better the chance of agreement.

The authors acknowledge that not everyone wants to “play” their game of negotiating over principles instead of positions. They discuss the concept of hard and soft negotiation and offer suggestions on how to deal with different situations.

I’m glad I re-read the book. It is a good reminder of how to move negotiations forward when things bog down. Attorneys who represent people need to be especially well versed in negotiation tactics because most people have only negotiated car purchases. By contrast, insurance company claims adjusters negotiate all the time. Insurance companies know the tricks. Consequently, to achieve fair value for a claim, people need to make sure their own attorney is skilled at preparing for settlement discussions and negotiating.

Jeff Merrick
Originally Posted 11/1/2011