Mark’s Mediation Strategies

Celebrated New York trial lawyer Louis Nizer recognized the power of silence in the bargaining process: 

“Only the amateur fears to be silent for a moment lest interest lag.  He depends solely on words to capture attention.  The artful performer knows that rhythm patterns require silence too, and nothing is more dramatic and effective than a long motionless pause after a statement.  It permits absorption of the thought.  It permits reflection.  But more important, it compels attention to what has been said as if an italicized finger had been pointed at it.”  ~ L. Nizer, Thinking On Your Feet (1963) at p. 26

Sometimes we just don’t know when to stop talking!  Even a brief period of quiet can make us feel awkward and uncomfortable.  When you negotiate, however, resist the urge to fill the silent void.  State your position succinctly and then wait patiently for a response.  Continuing to speak makes you look anxious, and risks an inadvertent disclosure or unintended concession.  Silence gives emphasis to the things we say.

As always, I am ready to work with you and your clients to achieve satisfying case resolutions. If I can be of assistance, please call.

Regards,

Mark Loeterman

Mark Loeterman
Email:  Mark@MLmediation.com

Mark’s Mediation Strategies

Mediators often see cases in whch the plaintiff and defendant each believe that their side is much more likely to win at trial than the other.  Of course, they both can’t be right. What accounts for this skewed vision?  People have a tendency toward overconfidence, which gives them faith in their ability to accurately predict future events.  The result is that we can fall prey to distorted thinking and have an inflated perception of our capacity to reach stated goals.

This should be of special concern to litigation counsel, who act as trusted advisors to their clients in making strategic decisions and who appreciate that an integral part of their professional expertise involves forecasting case outcomes.  In litigation, clients depend on their lawyer’s skill in objectively evaluating the strengths and weaknesses of a case, and whether to accept a settlement offer or proceed to trial. The risk is that if we overestimate the chances of success, parties may be dissuaded from settling cases when they should. 

Now comes a study which shows “clear evidence of unrealistic litigation goals” among attorneys, suggesting that “accurate legal decision-making might be in jeopardy.”   Among the study’s findings is that female attorneys were less susceptible to the overconfidence bias than their male colleagues, and more experienced lawyers were not significantly better at making case predictions than less seasoned practitioners.  One benefit of mediation is that it offers third-party neutral feedback that can reduce excessive optimism and advance critical analysis.

As always, I am ready to work with you and your clients to achieve satisfying case resolutions. If I can be of assistance, please call.

Regards,

Mark Loeterman

Mark Loeterman
Email:  Mark@MLmediation.com

[1] “Insightful Or Wishful: Lawyer’s Ability To Predict Case Outcomes,” Psychology, Public Policy and Law (2010), Vol. 16, No. 2, 133-157

Mark’s Mediation Strategies

There is news of how budget cuts are affecting the Los Angeles Superior Court, and the numbers are sobering for attorneys and their clients. In the Central District, there has been a 175% increase in the number of bench trials over the last few years and a 12% increase in jury trials. This, in turn, has reduced the time that many judges have for hearing routine matters such as law-and-motion and settlement conferences. Coupled with dramatic layoffs in staff and courtroom closings, expect more delays in getting civil cases to trial.

How can clients be protected from the impact of a shrinking court system? Some litigants may want to consider an early mediation, before the parties become locked in unyielding positions. Certainly, timing is an important factor. If parties are unprepared or unreceptive, their discussions may not be meaningful. Still, experience shows that the transition from legal warfare to negotiation can produce highly beneficial results, especially in the hands of a skilled mediator.

As always, I am ready to work with you and your clients to achieve satisfying case resolutions. If I can be of assistance, please call.

Regards,

Mark Loeterman

Mark Loeterman Mediation
Email:  Mark@MLmediation.com

Mark’s Mediation Strategies

Richard Holbrooke, one of America’s greatest diplomats, will be remembered as the principal architect of the 1995 Dayton Accords which ended the Bosnia War. Holbrooke believed that peace-making would not be possible without a credible threat of military force, and urged NATO to launch a bombing campaign that would pressure the Bosnian Serbs, and their leader Slobodan Milosevic, to come to the bargaining table. This is how Holbrook described his meeting with Milosevic:

“The decision was to go to NATO and ask them for an activation order to put the planes on ready alert on the runways, and to prepare to release them into General Clark, the supreme commander’s control, for bombing. The threat was credible. I made clear to President Milosevic, as did General Short, that this was real. When General Short joined me in the middle of the negotiations, we walked into the room, and Milosevic’s opening line to Short was, “So, General, you’re the man who’s gonna bomb us?” General Short, who was a Vietnam vet of 240 missions, a very brave, no-nonsense pilot, said a line that he and I had actually rehearsed on the plane coming in. “Mr. President, I have B52s in one hand, and I have U2s in the other. It’s up to you which one I’m going to have to use.” . . . The threat was credible, and it resulted in an agreement that allowed over 100,000 Albanians to come out of the woods and forests just before winter, where there would have been massive deaths from exposure, starvation, and freezing.” (Excerpted from a PBS Frontline interview.)

Some people believe that making threats during a negotiation will advance their interests. Before issuing a threat, evaluate how it is likely to be perceived. Negative threats tend to increase competitive behavior, heightening the risk of retaliation or intransigence. Of course, a threat that will not be carried out only undermines one’s credibility. Threats are most effective when they are reasonably proportionate to the action you seek to deter and your adversary appreciates the consequences of failing to modify its position.

As always, I am ready to work with you and your clients to achieve satisfying case resolutions. If I can be of assistance, please call.

Regards,

Mark Loeterman

Mark Loeterman Mediation
Email:  Mark@MLmediation.com

Mark’s Mediation Strategies

“When dealing with people, remember you are not dealing with creatures of logic, but creatures of emotion.” ~ Dale Carnegie

Mediation participants can be overwhelmed by powerful emotions – frustration, anger, betrayal and fear – that cloud one’s judgment and threaten to derail a negotiation.  Most often, these feelings are triggered by events giving rise to the dispute, but can also surface in response to perceived “hardball” litigation tactics.

In the midst of a heated negotiation, lawyers may not recognize that emotions can be the single biggest obstacle to settlement. With our expertise at gathering and analyzing information, we tend to focus on facts and dismiss personal feelings as “just getting in the way.”  Actually, the best antidote to a highly charged session may not be more data or argument, regardless of how persuasive they may be.  Instead, make sure the mediator listens to everyone carefully, allows them to vent and expresses genuine empathy, all without being distracted from the goal of resolution.  Acknowledging strong emotions is more effective than ignoring them or pretending they do not exist.

As always, I am ready to work with you and your clients to achieve satisfying case resolutions.

Regards,

Mark Loeterman
Mark Loeteman Mediation
Email: Mark@ MLmediation.com