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How we resolve our disputes

Entries in preparation (4)

Monday
Jun192017

Twice is nice

Last week, I was on a panel of attorneys at a continuing legal education seminar dealing with mediation. The session was part of the State Bar of Wisconsin’s Annual Meeting and Conference and was interactive. Attendees were asked to participate by answering certain questions using Poll Everywhere. Then, those of us on the panel commented on the answers. Some of the attendees’ responses were expected. Some surprised me. One in particular was very surprising. We asked what attorneys were most afraid of in mediation. The most frequent answer by far was finding out information that was harmful to the attorney’s case. I don’t know what those attorneys were thinking, but I would much rather find out what is wrong with my case at mediation, when there is still time to try to fix it or cut your losses, than during trial when it is too late. 

Early in my career, an attorney who I was working for told me that he didn’t like mediation because it forced him to prepare his case twice. I understand that attorneys are pressed for time and that it can be expensive to prepare your case for trial, and then to do it again, maybe getting more evidence or witnesses, or researching additional legal issues. But after I tried several cases, I realized that I always thought there was something I could have done better had I been able to do it again. Later in my career, I had the opportunity to do mock trials in preparation for some big cases. I always learned many new things about the case and how a jury might perceive it, and usually had to retool my presentation and arguments. This always benefited my client and subsequent settlement negotiations or trial strategy. 

Mediation is supposed to be a consensual process where parties in dispute talk about possible resolutions or settlements. If you suddenly learn new information about your case that makes you rethink its settlement value, that is a good thing. It does not mean you have to throw in the towel and accept your opponent’s settlement offer then and there. You can ask for a continuance to check out the new information and see if there is any way to counteract it. Then you can return to mediation, or proceed to trial, better prepared than before. Either way, mediation will have served a valuable purpose, not one to be afraid of. 

Monday
Dec092013

Practice!

An old joke relates the story of a tourist in New York City who asks someone on the street how he can get to Carnegie Hall. The native New Yorker responds “Practice!” The same can be said for negotiating. Whether you are using a neutral mediator or an advocate (like your attorney or agent), you should never just go to the meeting place and let the negotiations happen. You have to be prepared. Whether it is your job, your business, a real estate transaction, a loan, or some other major sale or purchase, you need to take charge.  And if it is big enough and important to you, get some help.

Attorney and sports agent Ron Shapiro, co-founder of Shapiro Negotiation Institute (SNI), has written books about how to prepare for negotiations.  He calls his most important advice the “three D’s”:

  • Draft — prepare a script for how you would like the negotiations to go. This will help you sort out what is important to you and what your goals are. What issues do you want to cover, how should you present your requests and how will you meet the other party’s potential objections?
  • Devil’s advocate — review your Draft with someone who can help you find the right way to say what you are going to say, as well as to avoid saying anything you might regret saying. Find a person who has been in your situation and can think of problems you might not anticipate.
  • Deliver — practice with a coach so you become confident and comfortable with your message. You never want to let the other side see you sweat.

If you need help preparing for a major negotiation, find someone who has been there and done that before. An attorney who has represented clients in major litigation as well as served as a neutral mediator and arbitrator is well-suited to play that role. Attorney Michael A. Pollack is one such attorney. Whether your goal is a better job, a better salary, a business acquisition or disposition, or an end to an aggravating dispute, let Michael Pollack help you to prepare and practice. Then, as they say in the theatre, “Break a leg!”

Monday
Nov192012

Extraordinary circumstances

In Wisconsin, absent excusable neglect, newly-discovered evidence, fraud, illegality or subsequent change in circumstances, a court can vacate a judgment or settlement agreement only if it finds “extraordinary circumstances” justifying relief from the judgment or agreement in the interests of justice.  In a recent unpublished decision, the Wisconsin Court of Appeals decided that a woman’s subsequent “discovery” of earlier releases she executed with a former business partner prior to entering into a mediated settlement agreement did not constitute such extraordinary circumstances.  The woman admitted that she had effective legal counsel in the mediation and she did not assert that she did not voluntarily choose to participate in the mediation and enter the settlement agreement, rather than to litigate the business dispute.  The mediation was conducted at an early stage of the litigation and the woman asserted that she did not remember or appreciate the legal significance of the earlier releases.  Nonetheless, both the trial court and the appellate court found nothing extraordinary enough to justify vacating the mediated settlement agreement.

I question whether this woman’s legal counsel was truly effective.  Preparation is as important prior to entering into settlement negotiations as it is prior to trial.  If these litigants truly had released their claims in prior documents, this should have been discovered and discussed before or during the mediation.  However, the courts’ decisions in this case, upholding the mediated settlement agreement, are not unusual.  Courts do not exist to extricate people from their own neglect, mistakes or lack of preparation.  This is why it is often just as necessary to have an attorney represent parties in mediation as it is in litigation.  Even so, mediation will usually result in a faster and more economical resolution of the dispute.  Satisfaction with the result depends on the partipants’ and the mediator’s preparation.  There is nothing extraordinary about that. 

Sunday
Oct302011

Preparation

Mediators frequently complain that parties to mediation do not come sufficiently prepared to reach a settlement. But preparation is a two-way street. Mediators also need to prepare for each session. I prepare by reviewing any information sent to me by the parties, as well as reviewing my mediation training. Some of the things I have learned are recorded in my previous posts. Recently, I have read two excellent articles that help refresh me before each mediation encounter.

The first comes from FINRA’s current newsletter. (You don’t have to be FINRA arbitrator or mediator to subscribe.) The article contains nine tips for a successful mediation. One of those tips is to “be prepared,” but following all of the other tips is the best preparation.

The other article comes from the ABA and discusses 10 things lawyers love and hate about mediators. According to the author, one of the things lawyers love is when mediators prepare beforehand. Seems obvious, but again the other items listed in the article provide fertile ground for preparation by a mediator.

If you are a mediator and have any favorite lists that help you prepare for a mediation session, please leave a comment and let me and my readers know what they are.