Resolution of class actions or other complex litigations is as much a part of any case as complaint preparation, discovery and motion practice. So, for something a bit different from the usual caselaw developments, I present an inteview by Adrianos Faccetti of a person well-situated to explain mediation, Mediator Victoria Pynchon.
Adrianos Facchetti is an Internet Defamation Attorney in Los Angeles and authors the California Defamation Law Blog. Today he interviews mediator Victoria Pynchon regarding her mediation philosophy and the ways in which attorney strategy and tactics affect the outcome of a mediation. Victoria is a mediator with ADR Services, Inc. in Century City, California, and an arbitrator on the AAA’s Expedited Commercial Panel. Victoria blogs on negotiation at http://negotiationlawblog.com and on IP ADR at http://ipadrblog.com . Before commencing her mediation practice, Victoria litigated and tried commercial disputes for 25 years.
What is you philosophy on mediation?
I’m a “roll your sleeves up and work it anyway that works” mediator. I am, by turns, facilitative (assisting the parties negotiate); evaluative (kicking the tires of each side’s case; looking under the hood; and, trying to reach a fair value for the thing); and “transformative” (assisting the parties in coming to terms with the emotional aspects present in every litigation).
I don’t give speeches about how expensive and protracted litigation is. Nor do I talk in generalities about the uncertainties of trial. The lawyers and the parties already know these facts all too well. I generally commence mediations in joint session for the sole purpose of introducing myself briefly to the parties and explaining confidentiality, as well as providing a forecast of what the day will likely look like. Then we break into separate caucus where I begin by asking counsel (and sometimes the parties) diagnostic questions.
What’s a Diagnostic Question?
Diagnostic questions are not focused on the merits of the litigation (which I’ve addressed with counsel on the telephone before the mediation session begins). Diagnostic questions are focused on what the parties need, desire, and prefer and what options they see as within the realm of reason for resolving the dispute. In the course of these discussions, I encourage the parties to identify items of value other than money on the one side and dismissal with a release of all claims on the other.
What do the Parties to Litigation Have to Trade Other than Money and a Dismissal?
As former Disney CEO and now Superior Court Judge Lou Meisinger was fond of saying, the parties to a settlement negotiation can “finesse impasse by turning the litigation into an opportunity to make a business deal” and Google’s CEO Eric Schwartz famously said that “litigation is just a business negotiation being conducted in the Courts.”
In all commercial litigation (which comprises most of my mediations) the issues can be expanded to include not simply the spoils of eventual victory, but all business assets and opportunities which are often of greater value to one side than the other (intellectual property, distribution channels, and other competitive economic advantages), as well as more intangible matters such as the acknowledgement by both sides of the part they played both in the dispute that commenced the litigation and in any unusually aggressive litigation tactics.
How early in the mediation do you suggest the parties begin to exchange proposals for settlement?
I generally stress the need for the parties to begin bargaining in the realm of reason fairly early in the day so that they don’t generate accusations of bad faith. Those accusations, justified or not, can and do create impasse even when the parties’ bottom lines overlap or where their bottom lines are so close to one another that they are relatively easy to bridge. Remember, the mediator knows much that the attorneys do not about each side’s negotiating positions. It is not terribly unusual for me to suspect that the parties’ bottom lines overlap. If the mediator suggests to counsel that they are not wasting their time by continuing to negotiate even when the parties are feeling impatient, counsel should take heed.
Are there ways to contract monetary demands or expand offers in pure money cases?
Even in “pure” money cases – such as personal injury actions – there are ways to increase the value of each dollar offered or to decrease the burden of each dollar demanded. You only need to think about your own behavior as a consumer to know that “a dollar is not simply a dollar.” We all have subjective monetary accounts. We treat money we’ve been given as a gift differently from money that we’ve earned. To our detriment, we often treat credit differently than we treat cash (try actually shelling out cold hard cash for a pair of $600 Jimmy Choo shoes!) Some of us pay more for brand name products even when the generic is identical (aspirin comes to mind). And we’ll often give more to a charitable institution than we would feel comfortable lending to a friend.
This is why it is so important to justify offers and demands with reasonable explanations and also why joint session discussions often help settle an action when the parties have reached impasse. No one likes handing money over at the point of a gun. On the other side of the table, a plaintiff is often willing to accept less than he or she “wants” or “needs” if convinced in the fairness of the offer.
But negotiating parties don’t ever believe their opponent is acting fairly, do they?
Surprisingly, mediation often results in the belief by both parties that the result, though not what they’d like it to be, delivers a kind of “rough justice.” I never let the fact that I’m working in the justice system be far from my mind. Business people do not seek out the advice of litigators to make money or do business. They seek out the advice of litigators because they believe they are the victims of an injustice. This is as true for defendants as it is for plaintiffs. Plaintiffs believe they’ve been unfairly harmed by the defendant, who becomes their target for all manner of grievances, some justified and some not. Defendants believe they’ve been unfairly charged with responsibility for an injury they didn’t cause. So there are personal dimensions to every piece of litigation even when the parties are “fictitious.”
One of my primary roles is to help every litigant reach a sober, realistic, business-savvy decision. Unless their justice issues are addressed, this type of decision is more difficult to make. Addressing the parties’ justice issues is necessary grease to move the wheels of the negotiation.
What can a lawyer do to make a good impression on the mediator? Does that matter?
Yes, it makes a great deal of difference for a lawyer to make a good impression on the mediator. The primary impression counsel should make is one of trustworthiness. In separate caucus mediation, your neutral will help you negotiate the best deal he or she can by, among other things, presenting your factual and legal positions to the other side in a compelling manner. The mediator will also explain what interests your client has that must be served by the settlement, i.e., the barriers to settlement; the needs and preferences of the clients; and, the pressures and constraints on the party. The mediator’s job is to help you convince the other side that your settlement demand or offer is fair and reasonable. If you are not trustworthy -- if, for example -- you make weak legal arguments or factual assertions that are easily rebutted, you decrease the mediator's credibility with your opponent, frustrating the mediator's work rather than furthering it.
To settle litigation, the mediator must be equipped to convince the defendant to pay more than it wants to and for plaintiff to accept less than it feels entitled to. To favorably "impress" the mediator, an attorney should be prepared, his or her client should be present, and both should be as candid as they possibly can about their objectives and the means by which they hope to achieve those objectives. Where their case is weak, they should acknowledge the weakness so that the mediator can focus on the parties' strengths when discussing settlement with the other side. The attorney should be nearly as patient as the mediator, flexible, and willing to follow reasonable mediator suggestions about attorney-only meetings; client-to-client discussions; and, novel means of satisfying party interests.
What are some common mistakes young attorneys make before, during, and after a mediation?
The younger (or newer) the attorney, the more he postures, puffs, evades and demands; the less patience he exhibits; and, the less candor he displays. But no matter how "green" an attorney, he or she can still know the case and the client’s needs and desires far better than the mediator possibly could. The new or young attorney need not impress the mediator with "toughness" or sophistication – only with thorough preparation for, and guarded candor throughout, the settlement negotiation. Negotiation is an art, but it is not rocket science. There is no need to impress the mediator with skill, experience or knowledge you do not have. The mediator wants to help you help your client settle the case. Don't resist.