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Say that to their face: See what happens
MICHAEL R. PANTER
Law Bulletin columnist
Published: July 18, 2018
This is the second of Mike Panter’s two-part interview with California mediator Jeff Kichaven on the proper role of a mediator in settlement negotiations. The first half was published in the July 3 edition.
I’ve written previously about the benefits of “break in” meetings with opposing counsel. First, you might learn something from them. Second, you may teach them something that will help you get the case settled, and third, you get to evaluate them yourself to see their resolve.
Jeff Kichaven believes that aspect — looking each other in the eyes — is important as well. It’s where, in Jeff’s view, the ethical and the practical become one.
“Let’s say at the end of the day, a plaintiff looks their lawyer in the eye and says, ‘Is this the most we can possibly get out of this case? Because if I am convinced that this is the most we can possibly get, I will settle.’
“If that plaintiff’s lawyer has not had any face-to-face communication with the other side, how is the plaintiff’s lawyer supposed to be able to answer that question? If the question is posed to the mediator, why should the lawyer’s client rely on the word of the mediator? The mediator, after all, lacks a duty of undivided loyalty. Maybe the mediator is just trying to squeeze out a deal.
“So I’ll say to the lawyer, ‘Do you want to sit in the room with the opposing counsel and look into the whites of their eyes and make your own judgment as to whether they’re bluffing? Because in my judgment, I don’t think he’s bluffing — but maybe he is. Do you want to size him up for yourself?’
“Why do I want that? Because I want the plaintiff’s lawyer to hear the conviction in the defense lawyer’s voice and to see the look on the defense lawyer’s face. Only then can the plaintiff’s lawyer answer her client’s acid-test question with integrity.”
That’s the lawyer’s job, Jeff thinks.
Jeff also likes to ask the lawyers to go face-to-face when one side is about to make an offer he thinks may cause turmoil.
“So let’s say somebody wants to make an offer or demand that I think is a terrible idea. It’s just a terrible idea that is going to draw such a negative reaction from the other side that I’m concerned it will drive the mediation straight into a brick wall. So I will sometimes say to that lawyer, ‘That’s fine. You think that’s in your client’s interest. Please come down the hall with me and I’ll get the other lawyer and you tell him or her that’s your number.’ They may say, ‘Oh no. I want you to do that.’
“I’ll say, ‘I’m concerned about doing it because I’ve been in the other room. I have my finger on their pulse a little bit, and I feel pretty confident that if I deliver that number to them with a straight face, I will lose credibility and effectiveness with them, in terms of supporting you or any of your positions.’”
Many times, Jeff reports, this results in reconsideration of the bad idea and a different, more reasonable number being proposed instead. Many lawyers have told Jeff, after the fact, that they appreciated the intervention.
Sometimes the parties need to get together to work out details.
“Let’s say you’re in a negotiation where it’s not just the price of a release. Let’s say you’re talking about a partnership dispute where the partnership owns six pieces of real estate and the question is whether we’re going to dissolve the partnership and one partner gets these assets and the other partner gets these other assets. Or you’re in an intellectual property dispute where it’s not just ‘we pay you money and you go away,’ rather it’s ‘we pay you some money, we get a license to your intellectual property. We’re going to pay you royalties and there are rates and territories and other things to be negotiated.’
“Where it’s that kind of a deal with many different components to it, business components, then yes, I generally want them together.”
Finally, Jeff wants the parties to meet when there’s a crossover, a sense that plaintiff will take less than the defendant is willing to offer.
“I would call the lawyers together, apart from their clients, and I would say something like, ‘You guys are very close. I think it’s possible, very possible that we can sit in this room and negotiate a deal. Let’s talk and let’s figure out how to settle this case.’ Then I’d be quiet.”
I’ve found, and so has Jeff, that sometimes there’s a fair amount of resistance to getting the parties together. Sometimes it takes moving a big roadblock to make it happen.
“Sometimes lawyers will insist that it just be shuttle diplomacy so, ‘alright, let’s try that.’ Many times, that runs into a brick wall pretty quickly. If lawyers see that we’re at an impasse or increments of upward movement by the defendants are slowing down, the increments of downward progress by the plaintiff are slowing down and they realize that we’re creating more antagonism than progress because of these small, little, incremental, diminishing moves and we’re still very far apart, and the lawyers get sufficiently frustrated with that, I might say, ‘Well, there is this other idea. Maybe the three of us need to get together to talk about how to generate faster movement here. Now, we might talk about bracketing. We might talk about any number of things.’”
I’m not sure that it’s an ethical requirement for lawyers or parties to meet in a mediation. It certainly makes good sense in many situations. I’ve seen myself that many times it brings the case to a good ending.
When the mediator floats a proposal like meeting with your opponent, even if you’ve never done it, think before saying no. Really, there’s nothing to lose, and I say, pick a mediator you trust, trust the mediator you pick.
While it’s your ultimate responsibility as the lawyer, every mediator wants to get each party as close to what they want as possible. Trust your mediator to work his or her very hardest to get you there.
Hon. Michael R. Panter (Ret.) is a senior mediator at ADR Systems of America LLC. He previously served in the Law, Family and Municipal Divisions of the Cook County Circuit Court. He was a trial lawyer for 30 years. Share responses and comments at mikepanter.com.