By Krivis, Jeffrey
Dispute Resolution Journal , Vol. 62, No. 1
Mastering basic mediation skills can take your practice to the next level. Philosophically, litigation and mediation seem worlds apart. While both are forms of conflict resolution that involve an outside party, the outcomes differ wildly. The results of litigation rarely satisfy both parties. The results of mediation are far more satisfying, since mediators use negotiation skills to reach a common ground on which all parties can agree.
Many attorneys could dramatically improve their law practices by learning to negotiate effectively both inside and outside the courtroom. For example, learning the art of negotiation would help them negotiate with demanding, disgruntled clients to obtain information that clients aren't always eager to disclose, often out of fear that it will hurt their case. It would also help them negotiate with opposing counsel to reach concessions that will save time and money by reducing the issues in dispute or even settling the case. In addition, they will be better able to help their clients become willing to negotiate. Clients who are angry or feel hurt in some way may not always be willing to agree to a proposal that isn't completely in their favor, even if they don't have the strongest case. A lawyer who is a good negotiator will be able to present the case in a way that helps the client clearly see all points of view, not just one viewpoint. Many trial attorneys I see in my mediation practice are surprised to see how negotiating with a client can help open doors to solutions the client may have rejected when the attorney first proposed them.
I explain mediation as a way of reframing a situation in order to persuade people to shift their positions so as to make a resolution possible. To be a successful negotiator, attorneys need to understand some basics about human behavior and practice the fine art of paying attention.
Here are 10 tricks of the negotiation trade that can make a positive difference in your legal practice:
1 LET YOUR CLIENTS TELL THEIR STORY.
A person who is deeply upset about something needs to get his story out. Allowing people to tell their stories is a basic principle of mediation. While it is true that this can increase the level of conflict, it is necessary to get through this phasae of the conflict to find the solution. This can happen when a person with a grievance feels that he has finally "been heard" and undergoes a dramatic change in outlook. Plus, allowing the story to be told is also a means by which new information may come to light that could allow a solution to emerge.
2 WHEN YOUR CLIENT IS RELUCTANT TO DISCUSS AN IMPORTANT MATTER, DIG FOR THE EMOTION BEHIND THE WALL OF SILENCE.
I recently mediated a situation in which a famous television producer was on the verge of being sued for plagiarism. The would-be plaintiff was about to claim the producer had stolen his idea for a TV show. When anyone talked to him about his grievance, he gave terse emotionless answers. So during a private meeting I asked him what he wanted to achieve. He almost broke down, saying, "I never wanted to bring this case in the first place. I just want to break into television."
So I returned to the producer and asked, "Is there any way you can help this guy out?" When the producer said, "Sure, let me talk to him," I arranged for them to meet. The producer ended up offering the would-be plaintiff a development deal. This illustrates how tapping into repressed emotions can lead to a solution that makes everyone happy.
You generally do not have the ability to speak openly with both parties, but you can use this approach to encourage your clients to open up and reveal everything you need to know to create a solid case.
3 IDENTIFY THE TRUE IMPEDIMENT IN EVERY CONFLICT.
Ask yourself, "What is the true motivating factor here?" Once you identify the impediment, you can predict how your client will respond and then shape the negotiations accordingly. …