Mark’s Mediation Strategies

Information is a valuable commodity.  It translates into power, both in litigation and at mediation. The careful use of information is an integral part of your bargaining strategy.  At the outset, it is important to understand what information you need to obtain from, and provide to, the other side so there can be a meaningful negotiation.  Here are some practical steps for handling information most effectively.

First, have the mediator arrange an exchange of information that is orderly and reciprocal, and which clarifies the positions being taken. This assures that no party feels vulnerable and manipulated by a one-way disclosure.

Once a protocol is established, then solve the information gap.  Ask the other side questions that are designed to buttress your position or better evaluate risks.  Next, consider revealing discreet pieces of information which demonstrate strength and confidence in your case, such as an analysis of damages or a case citation that supports a decisive legal principle.  A series of deliberate, thoughtfully-timed disclosures can yield significant concessions from your adversary.

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

Regards,
Mark Loeterman
Email:  Mark@MLmediation.com

Mark’s Mediation Strategies

Lawyers are careful at mediation about the information they reveal.  They fear giving up some advantage or losing the opportunity to surprise an unsuspecting opponent.  To learn how to protect sensitive information in a negotiation, just listen to how politicians talk.  They use a range of “blocking” techniques to avoid answering even the most probing interview questions.  Skillfully applied, these blocking techniques prevent unplanned disclosures without arousing suspicion that critical information is being withheld.

Consider, for example, a reporter’s question about the highly-charged issue of taxes and deficit reduction.  “Would you be willing to raise taxes to lower the deficit?”  Many politicians, especially in this economic climate, are reluctant to discuss raising taxes, so they treat the inquiry as a springboard to deliver a hawkish statement on ballooning deficits and the need to cut spending.  Negotiators can use a similar approach when responding to compound questions, answering the beneficial part(s) of the question (in this case, the part dealing with deficits) and ignoring the rest.

Another technique employed is to deliberately misconstrue the question and then change the focus to a different topic.  This time, assume a very specific question about the politician’s willingness to support a tax increase.   The politician responds, “I can see that you are worried about the deficit, a concern which I share deeply.  It would be unfair to ask the next generation to inherit an unsustainable debt…”  Instead of answering the touchy question, the politician has reframed the inquiry to a subject more to her liking and then answers the reformulated question.  When confronted with a difficult question, try turning the conversation in a new direction or responding with a question of your own.

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

Regards,
Mark Loeterman
Mark Loeterman Mediation
Email:  Mark@MLmediation.com

Mark’s Mediation Strategies

In certain types of cases, opening statements in mediation can be helpful in moving the parties closer to resolution.  But an opening that merely rehashes old arguments isn’t convincing and misses the purpose of settlement; namely, to leave the parties better off than going to trial.  In addition, a confrontational opening engenders the kind of hard feelings that drive parties even further apart, quickly derailing the negotiation.

In mediation, the most effective opening statements are those that engage our adversaries and create a sense of optimism about settlement.  What can you say to keep their ears wide open to resolution?

Your first words and body language will have a lasting impression, so use them to build rapport and set a positive, constructive tone.  Find a style that is natural and authentic for you, whether through small talk or humor, to establish a personal connection and convey your sincerity.  Demonstrate that you understand how the other side feels about the underlying events.  By acknowledging their perspective, you show that you are prepared to be fair and balanced.  You can empathize, referring to specific facts and then relating them to your own life’s experience, while remaining loyal to your client’s cause.

These steps will signal your commitment to negotiating in good faith, hastening a more rewarding outcome.

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

Regards,

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

Mark’s Mediation Strategies

Experts at the Institute of Medicine estimate that almost 98,000 people die each year from medical errors that occur in hospitals.  That’s more than the number that die from motor vehicle accidents, breast cancer, or AIDS.   A key theme that emerges in these cases is that legitimate liability concerns discourage prompt reporting of errors.

I first wrote about this several years ago in a tip called “The Power of An Apology.”  It explored the experience of the medical community in apologizing to patients injured by malpractice.  In short, many doctors and hospitals have learned they can deflect claims and avoid big jury verdicts by fully explaining to patients exactly what went wrong and expressing their sympathy and remorse.  The lesson here is that acknowledging a mistake and apologizing can have a beneficial effect on settlement discussions.

Why do apologies work?  Because they hold the potential to alter not only an injured person’s view of the dispute, but most importantly, their view of the defendant.  An effective apology diminishes the anger the recipient initially feels, leaving them more open to the possibility of settlement.

Recently, the Wall Street Journal carried a remarkable story showing how transformative this approach can be.  It described a crippling brain injury suffered by a toddler named “Kaelyn” when she was under sedation for an MRI procedure.  Hospital personnel failed to notice that Kaelyn’s breathing tube became dislodged, cutting off oxygen to her body.

In responding to the tragedy, the hospital took steps to do more than simply reach a financial settlement with Kaelyn’s family.  After studying the chain of events leading to her injury, the hospital adopted new procedures designed to ensure this kind of accident never happens again.  It even appointed Kaelyn’s mother as a community liaison and member of the hospital’s quality-and-patient-safety committee.

When things go wrong, instead of retreating behind a wall of silence, acknowledging a mistake can sometimes be the best medicine.

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

Regards,

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

Mark’s Mediation Strategies

“What above all else is eroding public confidence in the Nation’s judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win, that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice.” — Justice Antonin Scalia, dissenting in Caperton v. A.T. Massey Coal Co., Inc., (2009) 129 S.Ct. 2252

How often have we heard these views expressed by clients and even some lawyers? Justice Scalia’s words serve as a reminder of the benefits of the mediation process. Self-determination is the core principle upon which mediation is based: the belief that the parties alone have the power to negotiate a resolution that best serves their interests. To me, ‘play to win’ means using mediation to promote greater client satisfaction, both with the process of settling differences and the results achieved.

In a confidential setting, the risks and costs of going to trial are soberly and objectively analyzed, prompting a more realistic view of the strengths and weaknesses of the case. This, in turn, leads parties to more accurately weigh various settlement options, and make the most informed decision about how to proceed. The agreement they reach is usually more advantageous than the uncertain outcome imposed in the courtroom.

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

Regards,

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