By Peter Contuzzi
Dolan Media Newswires
The small, first generation of lawsuit mediators experienced settlement negotiations from a unique perspective — not from the sides of the table, but at the center, where you see and hear much more, especially during confidential caucuses.
Over the course of decades and thousands of negotiations, my observations from that center seat about lawyers who are successful in mediations have become distilled and clarified. Those lawyers come in a wide variety of styles (including the often maligned “tough guy”), but the most consistently effective have shared these qualities:
- They established and then maintained credibility throughout the entire negotiation. They provided a foundation for their statements and avoided exaggeration. When they said they would do something during the negotiation, they did it.
- They spoke persuasively and calmly. They listened attentively and acknowledged valid points that did not threaten their case. They asked information-seeking questions as well as rhetorical ones.
- They used time efficiently when working against a deadline. They initially tried to get deals as favorable as possible, but moved to more realistic demands and offers with enough time on the clock to do the harder endgame negotiating.
During that endgame, they entrusted reliable mediators to use information they were not willing to disclose to the other side to see if an agreement was possible.
- They made their best efforts to settle the case at the mediation, knowing that savvy mediators do not routinely follow up in every single case. That produces an incentive for a party to hold back at the mediation, trying for a better deal during the mediation and reserving its real bottom line for the follow-up stage.
- They recognized that the primary client concern was not always money and used the mediation process to address those non-monetary concerns. We lawyers are trained to quantify damages in dollar amounts, and understandably so: One of civilization’s greatest achievements has been the substitution of money damages for the blood feud.
But clients often are more concerned about other matters, and mediation can provide a process for those. Indeed, that’s where I have obtained the greatest satisfaction from my work as a neutral (so much so that in this last phase of my career, I accept cases only when the most important issue in dispute is something other than money).
Lawyers who are sensitive to these non-monetary concerns can get a similar level of satisfaction by tailoring the mediation process to client needs.
- They were, of course, well-prepared and well-versed all the other things you can find in the books and courses on legal negotiating. But you don’t need an observer in the trenches to tell you about those.
Peter Contuzzi has worked exclusively as a mediator and arbitrator since 1984, having previously been a civil litigator. He can be contacted at [email protected].