There are many pathways to successful negotiations and solutions that keep parties out of court or get them out of court sooner rather than later. Few litigants prefer to go to or stay in court; they usually see it as a money-losing necessity or a good bet.
Whether or not in the legal context, people find themselves having to negotiate with an adversary (whether opposing counsel or your five-year-old). Attorneys hope their cases go smoothly with opposing counsel, but we all say that we can be a tiger if necessary. And then everyone shows up in mediation in tiger mode. Attorneys have a choice: they can be either the biggest obstacle or the smoothest road to resolution. If the clients’ goal is to avoid litigation or end it early, here are a few tips:
TIP #1: CONSIDER ADDING A MEDIATION CLAUSE TO BUSINESS CONTRACTS
A mediation clause provides that before any party to a contract brings an action (of any kind) based on a dispute arising out of that contract, the parties must first engage in mediation to try to resolve the dispute. These alternative dispute resolution (ADR) clauses can include broader tiers of negotiation, mediation, and arbitration.
Here are some reasons to add mediation provisions to a business contract:
- Efficient and reliable conflict resolution processes reduce red ink on financial statements, enable parties to resume work together quickly, reduce lost time and productivity of employees, and prevent diversion of business time, energy, and creativity.
- The proceedings are entirely confidential and not a matter of public record.
- Early, informal, even joint, fact-finding can overcome communication failures that are typically at the root of the conflict.
- Mediation clauses allow the parties to control the process by being as basic or detailed as desired. Concerns about being manipulated by an opponent even in the mediation process (e.g., timing or neutral selection) can be addressed in the contract itself, long before a dispute might even arise. They can even include an attorneys’ fees provision.
- Importantly, attorneys are not seen as “pushing” for mediation; the contract requires it. (The best reason for it is that it works!)
TIP #2: REVIEW AND RESTORE COMMUNICATION
In any commercial case, one of the core reasons a matter escalates to litigation is that there is a failure to communicate. Claimants feel cheated, ignored, demeaned, damaged, and above all, angry. Defendants may have missed, ignored, or misinterpreted letters, phone conversations or messages, or emails. They may have claims of their own. And they are angry too. Somehow, the parties’ messages do not get through. Anger and disappointment drown out clear-headed thinking.
For a claimant or claimant’s counsel: Pick up the phone, or send an email to the right person. On many occasions, employees in call centers, AND their managers, simply do stupid things. Identify the head of the department, or someone in Legal. Often attaching a draft complaint will get a defendant’s attention. Often, mere knowledge that a claimant is represented by an attorney gets the responding party’s attention.
For a defendant or defense counsel: Pick up the phone, or send an email to the claimant (if not yet represented) or the attorney. Why? Because sometimes people can fix the problem with a clearer picture of where and how things went awry.
TIP #3: SETTLEMENT COUNSEL
Settlement counsel are attorneys who represent a client concurrently with litigation or other adversarial-style counsel. Their job is to negotiate settlement while allowing the adversarial process to continue at the same time. This arrangement can help attorneys whose strategy requires that they not travel both tracks themselves.
The rationale is that doing so is the POLICY and PRACTICE required by both client and lawyer. Consequently, raising the prospect of settlement does not suggest weakness.
In a pre-litigation matter, all attorneys are settlement counsel. Choose going to court, and the client will suffer through the risk, costs, uncertainty, and stress over an extended period of time.
TIP #4: WORDS AND TONE MATTER – A LOT
The words we use and the tone we set at the very beginning of any interaction, much less any negotiation, must clearly demonstrate a willingness to hear and understand the other’s point of view. This approach presents the best chance of being heard and understood in turn. When an intention of understanding is established, attorney and client are more likely to get what they want. Avoid a confrontational approach. Avoid words and bodily actions (e.g., eye-rolling) that are certain to generate an angry response.
Keep this in mind: At every mediation, I am told by counsel in each caucus room that they are ready and able to try the case. Counsel (and client) do not need to remind the opposition (i.e., threaten to beat them in the courtroom); they will simply pound their own chests in response. Intimidation tactics do not work. In the event that the opposition engages in “bad behavior,” I recommend avoiding a response in kind. Be the hero who moves the negotiation forward. Opposing counsel and their clients will remember the hero as a person of sound judgment and understanding nature. The hero’s own clients will remember their counsel’s skill and confidence in efficiently achieving their goals.
Cases, clients, and counsel are all unique in some way, but exchanging an adversary’s hat for a deal-maker’s hat usually works best in avoiding litigation. These tips work for disputes of all sorts, litigated or not. With the right approach in mediation, the parties control whether they stay out of court or get out as early as possible.