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Mediation Strategy: Leave Your Guns At Home

August 15, 2011

A very popular cross-over C&W song some time ago included the refrain, “Leave your guns at home, Bill; Don’t take your guns to town, Son; Leave your guns at home.”  Presumptively, these entreating words by presumptively a parent were meant to suggest to “Bill” that only bad things could come to one who goes looking for trouble.

As foreign (and difficult) as it may be for litigators, very similar to the song, i.e.,  Use a different attitude to and during  your mediation process than you commonly use in your litigation and trial process,  is equally good advice to increase your success at mediation.

Your Mother, in one form or another, likely said it another way:  “You can catch more flies with sugar than salt”.

Attitude is critical to success when you are in negotiation.  Mediation is simply negotiation in a formalized process. In negotiation each party is mutually seeking something from the other side.  In litigation and trial each is seeking a unilateral gain directly counter to the other side from a third-party trier of fact.  When one leaves litigation and enters negotiation there must be an attitude change to accompany the process change to gain your best chances of success.

If you really think about it, in mediation, unlike litigation and trial, BOTH sides are seeking something in common, a resolution without trial.  And both sides are required to be willing to exchange something one party wants for something another party wants.  But, equally important, unlike trial, both sides can leave mediation victorious!  Therefore, in mediation it is the wise attorney who approaches the negotiations of mediation with a totally different attitude than that of the litigator.

In litigation, derived directly from the English system of trial by combat, should trial become necessary, it is usually always perceived by the participants that the eventual outcome must come directly from the strength of one litigator or issue over another.    And, although the definition of that “strength” is multi-faceted and totally dependent upon the cause, most litigators see anything that is not “strong” or “strongly advocated” as a negative.  Hence, many experienced litigators find it almost impossible to take any position or undertake any process that is not perceived to be “pushing” their agenda over their opposition and diminishing any position of their opposition regardless of merit.

And, what makes matters worse, many litigators (and some clients)  have a “history” with other litigators that often transcends the present case particulars.  Or, a “history” in that case with their opposition that overshadows the common sense to try to work together to find a resolution to stop the pain of more time and more money.

Such a mindset is deadly to the mediation process.  In mediation negotiation, both sides must listen to and understand fully their oppositons’ reasoning. And worse (for the litigator), they must each likely accept at least some of the position of the opposition in order to obtain success in their own position. 

Negotiation, the anti-thesis of trial and the crux of mediation, ALWAYS requires the giving of something to get something else in return!  It is never a winner-takes-all process.

Perhaps that is exactly why, however, that non-lawyers find the mediation process so very useful and satisfying, while many litigators do not.  The average lay-person mediation-participant relishes the opportunity of finding “a business decision” that has absolutely nothing to do with “winning or losing”, but rather meets a central need of a participant, regardless of how obtained or what is obtained by the opposition.

And clients seldom keep score of settlements that they helped obtain.  But, you can bet they keep long memories of the outcome of trials they were “forced” to endure.

The better litigators also see mediation as just one more important pre-trial tool to achieve the net goal of their client.  “Net Goal” means what outcome, net of the cost and time of litigation, is more worthwhile to the client than simply a victory at any cost and at any time in the future.  The critical part of using this tool, however, is fully understanding the net goal of the client.  And accepting that it may not be necessary to seek an outcome that leaves nothing for the opposition as long as the net goal of your client is met.

Many experienced litigators get so caught up in “winning” the contest that they fail to delve deeply into the true net interests of their client.

Clearly, however, there will always be litigation issues where the clients only net goal is “winning”.  This is commonly found in emotional issue litigation, including family law and even business law where personal issues can be perceived larger than legal or even financial ones.

But, in those matters where the issue is time and money (and despite what most clients often say, both really are the issues in most cases), negotiation, by one means or the other, will more quickly and efficiently achieve a “net” happy client than trial.  More than one litigator has learned the hard way that winning an issue, but losing time and money doing it, is a short-cut to a very unhappy client.  And, often, despite what a client may initially say.

Part of my standard mediator’s opening, in one way or the other, requests the litigants, for that one day, to put their swords/guns away, stop looking back at yesterday and simply work with me to see what can be mutually achieved, that day, that will “net” a result for all that will be a better alternative than the possible outcome at trial in the future.

My job would be much easier, and so would those of other mediators, if, on the day of your mediation, you (and if necessary, your clients)  “left your guns at home”!

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