Category Archives: Mediation

Mediation Trusims (Money Negotiations)

Impasse is not an obstacle, it is part of the negotiation process;

Hope that an opponent will abandon their position is usually misplaced;

Resistance to reality (including risk of loss) is never in one’s own self-interest;

The numbers being exchanged as demands and offers do not tell the whole story about the progress occurring during negotiation;

The tipping point in negotiation begins when the parties start to perceive gain instead of loss;

You cannot rush a good negotiation, and shouldn’t try.

Two Selves (In Mediation)

Two Selves, in mediation as in life …

It has been said that everyone has two selves – one they know and one they show. The one is kept to ourselves protectively, and the other is shared with others selectively. One cannot suppose to really know the whole truth about another person any more than others can really know the whole truth about us unless we choose to reveal it. Our perception of others, and theirs of us, are usually incomplete and relatively uninformed.

The same can be said of people, interactions and perceptions in mediation during the course of negotiations. Participants in the mediation process tend not to outwardly express or reveal their true feelings. Instead, in furtherance of their goals, they try to be protective of their real concerns, desires and intentions lest they be taken advantage of by opponents. The exchange of monetary demands and offers at the beginning of a negotiation, and through almost all of it, is typically marked by posturing. During that process the parties exchange positional arguments and analysis in an attempt to undermine an opponent’s position and bolster their own. Contemporaneously, they buy time to understand, absorb and evaluate the respective positions. It is not until late in the process as they get closer to actual settlement that the parties reveal themselves, and then reluctantly, incompletely and often unintentionally. Overcoming this reticence is an essential part of the negotiating process and one that an effective mediator fosters as part of helping the parties to achieve closure and settlement.

Mediation: Critical Analysis Versus Magical Thinking

I am the magical mouse,
I don’t eat cheese,
I eat sunsets,
And the tops of trees.
(Kenneth Patchen, The Magical Mouse – 1952)

So it can be with disputing parties negotiating in mediations, but thinking like the magical mouse can present a serious obstacle to negotiation. In the end, it’s usually better to engage in critical thinking, not magical thinking. Being “critical” can mean quick to find fault or to judge; however, “critical analysis” is defined as “utilizing skillful judgment as to truth or merit.” “Magic” on the other hand is the art of producing illusions or a desired effect or result through techniques of magic, while “magical thinking” is “a conviction that thinking is equivalent to doing, occurring in dreams, the thought pattern of children ….” Webster’s Unabridged Dictionary (2nd ed.). When a party to a negotiation rejects reasonable objective analysis that might support resolution of a dispute in favor of unreasonable subjective hope that furthers dispute, they may be engaged in a form of magical thinking. They reject reason and embrace only the hope of achieving the bliss of victory, however uncertain and unlikely that may be.

Mediation: DSM-5 and the RDoC

Diagnosis and treatment of mental disorders in personal injury and insurance litigation can be highly controversial, and important new changes are afoot. DSM-5, the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) published by the American Psychiatric Association has drawn many detractors, including some prominent names in the field of psychiatry. Concurrently, a major new research initiative launched within the last few years by the National Institute of Mental Health, called the Research Domain Criteria (“RDoC”), aims to develop and validate new ways of classifying psychopathology based on neurobiological measures building on recent breakthroughs in genetics and molecular, cellular and systems neuroscience in the hopes of ultimately reaching a point where classification of mental disorders can be neuroscience-based and not wholly dependent on clinical observation. As criticism of the DSM’s methodology predictably increases, accompanied by publication of new scientific findings under the RDoC, the forensic dynamics associated with mental disorders and psychiatric evaluation and testimony may change significantly. Therefore, new developments under the RDoC will be closely monitored by legal practitioners. Sources: DSM-IV-TR; “Another go round in the saga of psychiatry’s bible,” USA Today (May 13, 2013); www.nimh.nih.gov/research-funding/rdoc/index.shtml.

Mediation and Negotiation – Misuse Of Words Is “Problematic” (What?)

Misuse of words is relatively common; we can all do it. Case in point: a U.S. Senator did it the other day when he complained that some of the money generated by Cuban tourism ending up in hands of the Castro government “is problematic.” It seems obvious, in context, that his intent was to express strong disapproval, but his words did not match or accurately convey his intent.

The word “problematic” actually means “in the nature of a problem; doubtful; uncertain; questionable.” Its synonyms are “puzzle, riddle, enigma,” and its antonym is “certitude.” The root word “problem” describes a question, not an answer. Technically, neither the word “problematic” nor its root word “problem” constitutes a conclusion of disapproval. This misuse of the word “problematic” no doubt relates to the similar and oft-used phrase, “I’ve got a problem with that,” by which people mean colloquially that they disapprove of something. Okay, so it’s no big deal when words or phrases are in general colloquial use, and even when misused, people know what you are trying to say. However, a more precise word usage and phrasing is of utmost importance in pinning down the details of negotiation and the finalization of legally binding agreements.

In mediations, one of the mediator’s essential roles is to communicate between the parties with precision and accuracy so no unintended misunderstandings arise in the course of negotiations. This is why conscientious mediators take extra care to assure that they understand exactly what each party wants to communicate with the other party before transmitting the information. A classic example is the word “interest,” as in “We are willing accept in full settlement the sum of $100,000 plus interest.” Really? What type of interest – simple or compound? What recurring period – monthly or annually? By what legal measure – under state law or federal law? By what rate – statutory, contractual, CPI-U, CPI-W or some other?

All of these points need to be clarified as part of the effort to gain, and assure, mutual understanding of the meaning and intent of a word. The parties to a mediation need to know that they actually have reached the agreement they think they did.

Mediation: Thinking Outside The Box

The need to “think outside the box” or be creative in mediating settlement negotiations is reinforced in mediation training courses, and many examples are used to illlustrate the point. Here is a variation of one of the more clever ones.

A man left seventeen camels to his three sons, and indicated the oldest son should get half, the middle son a third and the youngest son a ninth. The sons were preplexed – 17 cannot be divided by 2, 3 or 9. So, they sought help from a wise old woman, who said to them, “See what would happen if you also got one of my camels.” They did as she suggested, and figured half of 18 camels would be 9 camels, a third 6 camels and a ninth 2 camels, and lo and behold 9+6+2=17 camels – problem solved! From Ury, Getting Past No (Bantam Dell 2007 ed.), at p. 159.

(Another solution would of course have been to agree to round up each of the remainders to the next highest whole number as they divided the 17 camels by 2, 3 and 9, but not as clever or as much fun.)

The World of Mediation

I tend to wonder now and then
What correct positions really are,
Parties so often disagree.

One side says they’re right
But the other says the same;
How in the world can that be?

I think I finally see the truth,
On the whole of it
The world is round,

And from any point
On which one stands,
Half of it is upside down!

Dilemma: Cyber Security and Legal Ethics

The impact of technology on the practice of law has been dramatic. Reflecting that impact, state bar associations have been confronting the ethical issues that arise when attorneys and courts interact with social media and electronically stored information (ESI). As a result, bar associations have been issuing formal ethics opinions, and the trend involves application of the existing rules of legal ethics to new facts rather than formulation of new rules. This approach makes sense on a number of levels, but there is a disturbing reality that is emerging for attorneys practicing in the digital age.

There is an increasing realization, and appreciation, that cyber-security is lagging behind widespread and increasing threats to confidentiality and privacy of electronically created, stored and communicated information (data). For instance, e-mail transmissions are highly vulnerable to attacks utilizing viruses, worms, spyware and malware. Use of usernames and passwords to guard against unauthorized access to databases is vulnerable to cyber-intrusion, especially when users do not diligently and strictly follow highly demanding security protocols. Wi-fi signals between devices and routers are particularly vulnerable to being intercepted, and cloud computing presents a wide array of potential security weaknesses.

Law firms are definitely in the cross hairs – for instance, it has been reported that 80 major U.S. law firms were hacked in 2010. The dilemma is that while attorneys have a fiduciary duty to protect the confidentiality of their clients’ information and data, attorney-client communications and their own work product, they may be increasingly unable to actually assure such protection without implementing major cutting edge changes in their e-security practices (and incurring the associated expenses). What will ultimately be deemed to constitute reasonable compliance with ethical obligations in this challenging environment is a work in progress.

Mediation and Enduring Hope

As anyone knows who has faced the looming prospect of a possible victory or defeat in life, the last thing one lets go of is hope for a positive outcome. It is no different in litigation, and therefore no surprise that the enduring, intractable nature of hope presents itself in, indeed permeates, the negotiation process in mediation. And it affects all sides of a dispute regardless of position or which side will ultimately be proved right or wrong in the absence of settlement.

A mediator trying to tell someone they are wrong, or that their position is a losing one, early in a negotiation process – being evaluative – is predictably met with resistance. Rather than breaking down a barrier to settlement, such confrontative negativity more typically serves only to promote defensiveness and distrust, even if such a reaction is unreasonable, and even if the person might otherwise be reasonable and practical. This reality dictates that a mediator’s focus in the early phases of successful mediation is typically facilitative, with a focus on identifying issues, interests and possible solutions, and in the process building understanding, trust, and confidence about (and a positive emotional investment in) the mediation process.

This time-tested approach to mediation – facilitation before evaluation – is reality-based and enhances the prospects for settlement for all sides in the dispute.

Insurance Coverage In Less Than 100 Words

To determine whether or not an insurance policy provides coverage or benefits one must carefully review the declarations page(s), insuring clauses, definitions, limitations, exclusions, riders, amendments and attached application page(s), and consider all that apply together with the facts. The insured has the burden on triggering coverage; insuring clauses are intepreted broadly. The insurer has the burden on limiting or excluding coverage; such clauses are interpreted narrowly. Even if insurance coverage appears to be present based on initial examination of the policy terms in light of the facts, its availability may still be affected by applicable statutes, rules or cases, and by various defenses.